

















































\ \ 

\ i 


LIBRARY OF CONGRESS, 


COPYRIGHT OFFICE. 


No registration of title of thismok 
as a preliminary to copyright protec¬ 
tion has been .found. 


Forwarded to Order Division . 


(Apr. 5, 1901—5,000.) 



Class--7^2-2.3 

Book_±_ 



L> 
















■ 































- 




HOW TO LOCATE 


AND HOLD 

MINING CLAIMS. 


For Prospectors and 
Mine Owners. 


BY 

J. G. WATTS, 

Boise, Idaho. 


1902 

Press of Capital News Printing Co., Boise, Ida. 




THE LIBRARY OF 
GONGrtKSS, 

Two Co*** Receive® 

FEB. t4 1902 

GOPYHWHT EftTKY 

CLA3* XXCw Ho- 
copy a 


Copyright 1902 
by J. G. Watts. 


Received from 

Copyright Off!23 

f£i> U •• 


r 







9 / 7 > /L , 


PREFACE. 


For several years past the author has been 
impressed with the fact that the prospector 
and miner needed a practical guide, written 
in a style that could be readily understood, 
stripped of legal verbiage, printed in plain 
large type that could be read by candle light, 
and bound in a size and style that would be 
convenient to carry in the pocket. 

An attempt has been made in this little vol¬ 
ume to supply this need. The various steps 
necessary to perfect and hold a mining claim 
are discussed in the order in which they are 
to be taken and the prospector and miner are 
advised what to do and when and how to do it. 

The statute laws of the several mining states 
as well as the federal statutes define the method 
of making locations and the requirements as to 
annual assessment work. Very few prospec¬ 
tors have the time or opportunity to study these 
statutes and the constructions which the courts 
have placed upon them, consequently their 
knowledge as to what is meant by “natural 



object,” “permanent monument,” the manner 
of referring to them, where they must be locat¬ 
ed, where and how the annual assessment work 
may be done, what constitutes a v^lid notice, 
what is a good discovery, what may be done to 
save his claim from forfeiture, and many other 
questions connected with the locating and hold¬ 
ing of mining claims, are but little understood. 
It is the object of this work to strip all these 
questions of their legal and technical character 
and explain them in a concise and intelligible 
manner. 

No attempt is made to discuss the process of 
obtaining patents to mining claims, the pos¬ 
sessory title only is here treated. 

If this little book shall prove of value to the 
prospector and miner in his work of perfect¬ 
ing and holding such title, it will have accom¬ 
plished its purpose. 

Dated February 12. 1902. 


THE AUTHOR. 


1 


* SYNOPSIS. 


CHAPTER L 

Pace 

Mineral, Lands . 9 to ir 

Must be unappropriated. 10 

Right to veins ....*.. 9 

Rights in, extent of. 9 

Time to record notice. 11 

Who may occupy. iq 


CHAPTER II. 

Discovery . 12 to 16 

Apex of lode... 14 

Degree of richness required. ... 12 

Discovery the source of title.... 12 

Necessity for discovery. 15 

Rights while prospecting.. 13 

Shaft, where must sink. 14 

Sufficient discovery, what is.. .. 13 

Veins or lodes defined. 14 

What will support location. 14 

Where made . ' 13 


CHAPTER III. 

Location . 17 to 43 

Amount appropriated.. . 17 




















2 


Preliminary stake ancl notice. . . ig to 

Contents of notice. 

Effect of notice. 

End stakes . 

Holds how long. 

Monument, what is.. 

Monument, where erected.... 

Neglect to erect, result. 

“Northerly’’ and “Southerly,” 

meaning. 

Notice, form of. 

Notice only temporary. 

Notice, when to be placed.... 

Marking the boundaries. 26 to 

End lines and side lines. 

End lines to be parallel. 

Failure to mark, effect. 

Monuments, size and kind. . . 

Stakes, how marked. 

Staking on prior locations. . 

Stakes, number required. 

When corner cannot be staked 
When to be marked. 

Notice . 33 to 

Agent may locate. 

Contents of notice. 

Course and distance. 

Description of claim. 

Form of notice.. 


Pa.£?e 

25 

1 9 

20 

25 

20 

22 

22 

22 


25 
23 
23 
19 

33 

28 

29 

27 

3 1 

32 

30 

30 

28 

26 

43 

42 

34 

38 

35 

39 
























3 


Page 

Form, explanation of...... . % 41 

Natural object . 37 

Notice and staking should 

correspond. 35 

Permanent monument . 37 

Posting, manner of. 4 2 

Tie, reasons for requiring. ... 36 

When to be posted.. 33 


CHAPTER IV. 

Work Necessary To Constitute 

Valid Location . 44 to 47 

Amount of work necessary.... 44 

Character of work. 45 

Object of work. 44 

When must be done. 44 

Where must be done. 44 

Work a part of location. 45 


CHAPTER V. 

Recording Location Notice. ... 48 to 53 

Affidavit to notice. 49 

Affidavit, before whom made... 50 

Agent may make affidavit. 50 

Character of notice. 48. 




















4 


Pagre 

Deputy District Recorder.* 50 

How appointed. 51 

Election of. 51 

Duties of. 52 

When to be recorded. 48 

Recording completes location.. . 52 


CHAPTER VI. 

Placer Claims . 54 to 70 

Defined . 54 

What subject to entry as. 54 

Size of claim. 55 to 56 

Tines need not be parallel.... 56 

Shape and form.. 56 

To conform to government 

survey .. 55 

Discovery . 57 

Essential to valid location. ... 57 

On 160 acres . 57 

Marking the boundaries. 57 to 60 

Preliminary notice. 58 

Form of . 59 

Time allowed .. 58 

Size of stakes. 59 

Location notice . 60 to 66 

Contents of notice. 62 























Page 

Form of notice. 64 

Form, explanation of. 66 

When to be posted. 61 

Work necessary to constitute 

location . 66 

Recording location certificate. . 67 to 69 

Affidavit . 67 

Recording perfects location. . 69 

When to be filed . 68 

Table of dimensions. 70 


CHAPTER VIL 

Annual Rabor . 71 to 89 

Forfeiture, when takes place. . . 72 

Forfeiture, how avoided. 72 

When must be done. yy 

Where work must be done. ... 73 to 76 

Work done off the claim. 73 

Work done on the claim. 74 

Work by tenants in common . . 75 

Work on contiguous claims. . 75 

Character of work. 76 to 78 

What will count. 76 

What will not count. 76 

Estimating amount of work. . 77 

Paying for work done. 77 

Work on placer claims. 77 




















6 


Pas:e 

Proof of labor. 78 to 83 

Affidavit, form of. 80 

Effect of . 81 

Object . 82 

Two claims in one. 81 

When filed . 79 

Where filed. 79 

Who may make. 82 

Idaho’s staking proof. 79 

Requirements of statutes.... 78 

Forfeiture to co-owner. 83 to 88 

Affidavit of failure to contrib¬ 
ute . 87 

Demand on delinquent. 83 

Notice, form of. 85 

Service of. 86 

When may be given. 84 

Filing with recorder. 87 

Statute concerning. 83 

Time allowed delinquent. 84 

Who may claim forfeiture... 85 

Failure to perform work, result. 88 


chapter viii. ;; ' i t 

Amended Or Additional Cer¬ 
tificates . 90 to 96 

Form of certificate. 94 























7 


Pase 

Intervening rights . 92 

Law governing amendments. . . 93 

Must be an original notice. 91 

Purpose of amending . 91 

Right to amend. 90 


CHAPTER IX. 

Relocating Abandoned Claims. 97 to 100 

Abandonment, what is. 100 

Forfeiture, what is. 100 

Manner of making relocation. . 97 

When may be made. 98 

Who may relocate. 99 


CHAPTER X. 

Mill Sites .101 to 106 

Form of notice. 104 

How located . 104 

Is a mining claim. 103 

Must not be contiguous. 102 

Size of claim. 102 

Upon what ground. 101 

Use of claim . 102 

What is sufficient use. 103 

When'may locate. 106 

Who may locate. 101 























-A . 


* 


FORMS. 


Page 

Notice of Discovery. 23 

Notice of Lode Location... 39 

Affidavit to Notice. 49 

Placer, preliminary notice. 59 

Placer Location Notice. 64 

Proof of Labor. 80 

Notice of Forfeiture. 85 

Affidavit of Failure to Contribute. 87 

Amended Location Certificate. 94 

Millsite Location. 104 













CHAPTER I. 



MINERAL LANDS. 

The government of the United States has 
openecl the public mineral lands to exploration 
for the precious metals, and grants to prospec¬ 
tors the right to extract and possess the mineral 
within certain prescribed limits, and to occupy 
and purchase the land in which they are found 
under regulations prescribed by law and ac¬ 
cording to the local customs or rules of miners 
in the several mining districts. 

So long as they comply with the laws of the 
United States, and with State and local regu¬ 
lations not in conflict with the laws of the Unit¬ 
ed States, they shall have the exclusive right of 
possession and enjoyment of all the surface in¬ 
cluded within the lines of their locations, and 
of all veins, lodes, and ledges throughout their 
entire depth, the tops or apexes of which 
lie inside of such surface lines extended down¬ 
ward vertically, although such veins, lodes, or 
ledges may so far depart from a perpendicular 
in their course downward as to extend outside 
the vertical side lines of such surface locations. 




10 


But their right of possession of such veins or 
ledges is confined to that portion which lies be¬ 
tween vertical planes drawn downward 
through the end lines of their locations. 

The right to thus explore, occupy and pur¬ 
chase mineral lands is limited to citizens of the 
United States, or those who have declared their 
intention to become such. 

As the locator of a mining claim is entitled 
to the exclusive possession and enjoyment* of all 
the surface ground included within his bound¬ 
aries, it is important that the prospector should 
know, before he begins his search for the pre¬ 
cious metals, whether or not the ground he is 
prospecting is already appropriated; for, hav¬ 
ing been once located, the land, to the extent 
of the location, is withdrawn from the public 
domain, and is not open to exploration or pur¬ 
chase so long as the locator, or his grantees, 
comply with the law and the local rules, cus¬ 
toms and regulations of the mining district. 
If he forfeits his claim by failure to perform 
the annual labor or make the amount of im¬ 
provements required, or if he abandons his 
claim, leaves it with no intention of returning 
to it again, then the land covered by his loca¬ 
tion reverts to the United States, becomes again 
open to exploration and occupation and may be 
located the same as though no previous location 
had ever been made thereon. 


11 


The statute law of Arizona, Montana, Ne¬ 
vada, New Mexico, Idaho, Colorado and 
Washington allows the locator of a mining 
claim ninety, Oregon, South Dakota and Wyo¬ 
ming sixty, and Utah thirty days after making 
his discovery or posting his preliminary notice, 
in which to file for record his location qptice. 
This being the law, it is quite impossible for a 
prospector to determine, by a search of the 
records in the recorder’s office, whether or not 
the ground which he desires to prospect is open 
to location. He can only determine this fact 
by going upon the ground and making a care¬ 
ful examination of the surface markings. 

Having determined this question and found 
that the ground he desires to prospect is unoc¬ 
cupied, he begins his search for precious metals. 
His first stef), and perhaps the most vital one 
in the series of steps required of him in perfect¬ 
ing his location, is the discovery of mineral. 


12 


CHAPTER II. 


DISCOVERY. 

This and the three succeeding chapters will 
be devoted to lode claims. 

In -all legislation and by all mining regula¬ 
tions and rules, discovery and appropriation 
are recognized as the sources of title to mining 
claims (i). It can be readily seen by the pros¬ 
pector that a discovery of mineral is of the ut¬ 
most importance, for, without such discovery 
all steps taken by him in perfecting his location 
will be of no avail. It matters not how careful 
he may be in selecting and posting stakes of the 
proper size, how correct in describing the 
courses and distances of his boundaries, how 
exact in his reference to some natural object or 
permanent monument, if he has failed to make 
a valid discovery of mineral he has no title, be¬ 
cause his right to appropriate the land origi¬ 
nates with the discovery of something to appro¬ 
priate, to-wit, the mineral. 

The law does not require any particular de¬ 
gree of richness to support a quartz location. 
It only requires that there shall be sufficient in¬ 
dication to justify a reasonably prudent person 
in expending his time and money in its devel¬ 
opment (2). It leaves the prospector to judge 
whether the indications are sufficient (3), if 



13 

he is willing to spend his time and money in de¬ 
veloping the property, then the presumption is, 
that there is mineral in paying quantities. 

The discovery must be of ore or mineralized 
rock in place, in a defined vein, or in continuous 
vein matter. The finding of float or detached 
pieces of ore is not considered a sufficient dis¬ 
covery upon which to base a location. It makes 
no difference whether the ore outcrops on the 
surface, or whether it is found by sinking a 
shaft, or running a tunnel, but it must be in 
place, and the discovery of the vein or lode must 
be within the limits of the claim as afterwards 
located. The prospector cannot make a dis¬ 
covery of ore and then locate his claim 
so as to leave the discovery outside 
of his lines. It necessarily follows, that 
every claim must rest upon its own dis¬ 
covery; in other words, one discovery will 
not suffice for two locations. The practice of 
locating extensions on the original discovery 
claim, without making a discovery on the ex¬ 
tension, is without warrant of law, and subjects 
the prospector who has so located to the danger 
of losing his claim to the first person who en¬ 
ters upon it and makes a valid discovery. 

A prospector can hold to the extent of his 
claim if he remains in actual possession while he 
is prosecuting a search for mineral before the 
discovery of the same in place; but if he stands 


14 


by and permits another to sink a shaft or oth¬ 
erwise search for mineral within his boundary, 
and the latter first discovers the mineral, a loca¬ 
tion by the latter will take precedence over his 
claim (4). 

Veins or lodes are lines or aggregations of 
metal embodied in quartz or other rock in place; 
.these words are used as embracing a more or 
continuous body of mineral lying within 
; \y^U .defined boundaries of other rock in the 
mass within which it is found (5). There 
must be rock, clay, or earth so colored or de¬ 
composed by the mineral element as to mark 
and distinguish it from the inclosing coun¬ 
try (6). If a discovery is made in a vein or 
lode as here defined, then the prospector has 
such a discovery as will support a location. The 
central idea of a mining claim is that there must 
be a discovered lode within it, the locus of which 
on its onward course or strike is embraced by 
the boundaries of the claim (7). 

The locator must sink his discovery shaft 
upon territory which he has a right to appropri¬ 
ate. If he sinks it upon ground embraced in a 
prior, valid and subsisting location, though 
with the consent of the owners thereof, he ac¬ 
quires no rights by his discovery (8). 

The prospector should be careful in mak¬ 
ing his discovery to find the top or apex of the 
vein, for the top or apex must be within his 


boundaries to entitle him to the vein or lode. 

Remember that no rights can be acquired un¬ 
der the statute by location before the discovery 
of a vein or lode within the limits of the claim 
located (9). 

It is true that some cases have held that a 
valid discovery made after location and before 
other rights have accrued will make the loca¬ 
tion a valid one, yet the general statement is 
true that a discovery is actually necessary to 
initiate title, and a location, void at the time it 
was made, because of no discovery, continues 
void, and is not cured by a subsequent discov¬ 
ery if in the meantime other persons have, by • 
a valid discovery, acquired rights to the 
ground. This is because the discovery cannot 
relate back and make such location valid from 
date of location (10). It has also been 
held that it is not necessary that min¬ 
eral be discovered in the .discovery shaft 
if it is discovered within the limits of the 
claim before adverse rights attach (n). The 
contrary has been held by the Circuit Court 
of the United States (12). This last is under 
the Colorado statute. 

These extreme cases are cited, not for the 
purpose of encouraging any prospector to be 
lax or careless in making his discovery, but that 
lie may protect his location against the claims 
of trespassers. The only, safe rule for him to 


10 


follow, is to initiate his title by making a valid 
discovery, for the party who first discovers a 
vein and posts his discovery notice, following 
such acts with the remaining acts necessary to 
a valid location within the time prescribed by 
law, is entitled-to the vein as against a subse¬ 
quent discoverer who succeeds in first complet¬ 
ing all the requisite acts of location. (13). 

( 1 ) O’Reilly v. Campbell, 116 IT. 8. 418 . 

Erhardt v. Boaro, 113 U. S. 537 . 

( 2 ) Muldrick v. Brown, (Ore.) 61 Pac. 428 . 

Railway Co. v. Migeon, 68 Fed. 811 . 

Harrington v. Chambers, (Utah) 1 Pac. 362 . 
Burke v. McDonald, 2 Idaho 1022 . 

( 3 ) Burke v. McDonald, 2 Idaho 1022 . 

Harrington v. Chambers, (Utah) 1 Pac. 375 . 
Ellers v. Boatman, 4 Sup. Ct. Rep. 432 . 
McShane v. Ivenkle, (Mont.) 44 Pac. 979 . 

( 4 ) Crossman v. Pendery, 2 McCrary 139 , 8 Fed. 693 . 

( 5 ) United States v. Iron Silver Min. Co. 128 U. S. 673 
Iron Silver Min. Co. v. Cheesman, 116 U. S. 529 . 

(6) Burke v. McDonald, 2 Idaho 1022 . 

( 7 ) Wolfiey v. Lebanon M. Co. of N. Y., 4 Colo. 112 . 

(8) Armstrong v. Lower, 6 Colo. 393 . 

( 9 ) North Noonday Min. Co. v. Orient Min. Co., 1 

Fed. 522 . 

Jupiter Min. Co. v. Bodic Con. Min. Co., 11 
Fed. 66. 

Burke v. McDonald, 2 Idaho, 1022 . 

( 10 ) Upton v. Larkin, (Mont.) 6 Pac. 66. 

( 11 ) Wight v. Tabor, 2 L. D. 738 . 

Harrington v. Chambers, 111 U. S. 350 . 

(12) Van Zandt v. Argentine Min. Co., 8 Fed. 725 . 

( 13 ) Pelican & Dives M. Co. v. Snodgrass, 9 Colo. 339. 


IT 


CHAPTER III. 


LOCATION. 

Having made a valid discovery of ore or 
mineral in place as indicated in the preceding 
chapter, the prospector should next take such 
steps as will secure to him the exclusive posses¬ 
sion and enjoyment of the fruits of his discov¬ 
ery. 

He may appropriate to his own use fifteen 
hundred linear feet of the vein, lode or ledge 
so discovered, and in addition thereto may 
also take and hold a certain number of f°et 
of surface ground on each side of the center of 
the vein, lode, or ledge, for the convenient 
working thereof. The United States statutes 
provide that the amount he is entitled to take 
cannot exceed three hundred feet on each side 
of the center of the lode or vein, that this 
amount may be reduced by the state or terri¬ 
torial legislatures, or by the local rules and reg¬ 
ulations of miners, but that the minimum must 
not be less than twenty-five feet on each side. 

All the mining States and Territories with 
the ( exception of Colorado, allow the full 
width of three hundred feet on each side of the 



center of the vein or lode. In Wyoming the 
mining district may fix the width, but not at 
less than one hundred and fifty feet on each 
side. In Colorado the width is fixed at one 
hundred and fifty feet, except that in Gilpin, 
Clear Creek, Boulder and Summit Counties, 
only seventy-five feet is allowed, but any county 
may at a general election determine upon a 
greater or less width, not exceeding, however, 
300 feet. While the prospector is entitled to 
take 1500 feet along the vein, lode or ledge, 
and the amount fixed by the law of the State 
in which he is prospecting, on each side of the 
center of the vein, lode or ledge, he is not re¬ 
quired to take a full claim. The statute fixes 
the maximum that he is entitled to take; he 
may appropriate as much less, both in length 
and width as he sees fit. 

Remember that the law does not fix the 
width of a mining claim at 600 feet, the pro¬ 
vision is, 300 feet on each side of the center 
of the vein or lode. Under no circumstances 
is the prospector authorized to go beyond this 
limit on either side. The two sides need not 
be of the same width, but the wider one must 
not exceed the limit fixed by law. He cannot 
locate his claim so as to have 400 feet on one 
side of the vein and 200 on the other, for as 
stated above, the law does not fix the width 
of a claim, but does fix the extreme limit that 


10 

the prospector is entitled to take on each side of 
the vein or lode. 

The law provides a means by which the pros¬ 
pector may appropriate the vein or lo.de which 
he has discovered and the surface ground on 
each side of the center thereof, to-wit: By 
making a location. 

Certain steps are necessary on the part of the 
prospector in order to make a valid location 
of his ground, and these steps will be stated and 
discussed in the order in which they are to be 
taken. 

i. Preliminary Stake and Notice. 

At the time of making the discovery of the 
vein or lode, the prospector, or locator as he 
may now be called, must erect a monument 
at the place of discovery, upon which he must 
place his name, the name of the claim, the date 
of discovery, and the distance claimed along 
the vein each way from such monument. 

This statement of the first step to be taken 
in making a location is taken from the laws 
of Idaho (i). The other mining States and Ter¬ 
ritories have no similar provision, yet all of 
them recognize such a notice as good to hold 
the ledge for a reasonable time. As to what is 
a reasonable time, may be inferred by the stat¬ 
utes of the several States defining when the 


20 


boundaries shall be marked and the location 
notice posted. In Oregon, Montana, New 
Mexico, Utah and Nevada the location notice 
is required to be posted at the date of discov¬ 
ery, which of course is construed by the courts 
to mean within a reasonable time allowed to 
determine the strike of the ledge. 

In Arizona, Colorado and Washington, the 
locator has ninety days and in South Dakota 
and Wyoming sixty days after discovery to hie 
for record his location certificate, and the stat¬ 
ute of each of these States and the Territory 
provide that before filing his location certifi¬ 
cate he shall mark the boundaries of his claim 
and post his notice of location, so it would 
seem that he would have all this time, ninety or 
sixty days, as the case may be, under his pre¬ 
liminary notice. In Idaho only ten days are 
allowed. 

The object of this preliminary monument 
and notice is to secure to the prospector his 
right to the vein or lode, together with the 
surface ground allowed by law, for a limited 
length of time, that he may by development 
work on the vein or lode, or by such other 
means as he may deem best, determine the true 
course or strike of his ledge. 

After he has erected his monument and post¬ 
ed his notice, no one can interfere with his 
right to 1500 feet of the ledge, or such other 



21 


less distance as he may claim in his notice, dur ¬ 
ing the time between the posting of the notice 
and the time allowed for taking the next step 
toward perfecting his location. During this 
time he has the exclusive right to prospect the 
ledge within the limits of his claim. 

It has been held by the courts of the United 
States and in those States where no prelimi¬ 
nary notice is required, that the prospector is 
entitled to a reasonable length of time after 
making his discovery, in which to prospect 
his vein or lode and determine its true course 
or strike, and the courts have protected his 
right to the ledge for a reasonable time. 

Although the statutes of the United States 
do not require the posting of a notice, yet the 
General Land Office recommends that the pros¬ 
pector post a notice at his point of discovery, 
so that others coming upon the ground for 
the purpose of prospecting may know the ex¬ 
tent of his claim. 

This monument, with the notice thereon, 
must be erected at the time of making the dis¬ 
covery. The object of this provision is two¬ 
fold : First, to protect the prospector against 
the interference of others; Second, to notify 
other prospectors who may come that way 
of the extent of his claims so that they may 
guard against trespassing on his rights and 
know what ground is still open to exploration. 


Should he. neglect to erect his monument and 
post his notice, another prospector, ignorant 
of the fact that he has made a valid discovery, 
might discover the ledge at some other nearby 
point, post his notice and thus deprive the first 
prospector of the fruits of his labor. 

The monument may be of any such material 
or form as will readily give notice, such as 
stones, trees or post; the laws of Idaho pro¬ 
vide that it must be at least four feet high 
above the ground, and if it be a tree or post it 
must be at least four inches square or in diam¬ 
eter, and if a tree it must be so hewn as to read¬ 
ily attract attention. While the other States 
do not define what shall constitute a discovery 
monument, it is to be presumed that the same 
character of stake is required as those to be 
used in marking the boundaries, which sub¬ 
ject will be discussed under the next head. 

This monument must be erected at the place 
of discovery, The statute makes the place of 
discovery the starting point from which to 
measure the distance claimed along the ledge 
in either direction and properly requires the 
notice of claim to be posted at this point. If 
the discovery is made in a tunnel the monu¬ 
ment should be erected on the surface directly 
over the point of discovery, for the presump¬ 
tion is that the top or apex of the ledge is above 
the point of discovery in the tunnel, and that 





by sinking- from the surface the apex would be 
found; moreover, the erection of the monu¬ 
ment and the posting of the notice in the tunnel 
would not impart notice to others ; the monu¬ 
ment should always be erected on the surface. 

Having erected the monument, there must 
be placed thereon: First, the name of the lo¬ 
cator; Second, the name of the claim; Third, 
the date of the discovery, and Fourth, the dis¬ 
tance claimed along the vein each way from 
such monument. 

This notice is only a temporary one, and as 
it will be taken down in a few days and the 
permanent location notice substituted in its 
place, it is not necessary that any great care 
should be exercised in protecting it from the 
weather. It should be posted in a conspicuous 
place on the monument so that it can be easily 
seen and read. No particular form is required, 
it is only necessary that the notice contains 
the four essentials above mentioned. 

The following is suggested as a short and 
convenient form: 


NOTICE OF DISCOVERY. 

I, John Doe, having this 15th day of Novem¬ 
ber, 901, discovered at this point, a vein or 
lode of quartz in place, bearing gold and silver 
and other precious metals, do hereby claim and 



locate 1500 feet on this vein, lode or ledge un¬ 
der the name of the Diana lode claim, to-wit: 
One thousand feet in a northerly direction and 
■five hundred feet in a southerly direction from 
this stake or monument and notice, together 
with three hundred feet on each side of the cen¬ 
ter of said vein, lode or ledge. 

Date of posting, Nov. 15th, 1901. 

JOHN DOB, 

Locator. 


As before stated, this is only a temporary 
notice, intended to protect the rights of the 
prospector during the time allowed by law for 
him to determine the true course or strike of 
his ledge. After he has posted his permanent 
location notice, this temporary notice has no 
further services to perform, and may be taken 
down. The law does not require it to be re¬ 
corded, and it is of no value except in case of a 
conflict over the title to the ground, where the 
adverse party claims by virtue of a discovery 
made between the date of its posting and the 
date of posting the permanent location notice. 

The prospector is urged to preserve this no¬ 
tice, and if it is possible to find witnesses to its 
posting, have them sign it as witnesses at the 
time of posting. If a contest, such as is men¬ 
tioned above, arises, the notice, with the sig- 



natures, of witnesses, is the best evidence that 
the preliminary step as required by law was 
taken. 

The words “northerly” and “southerly” used 
in the above form do not mean directly north 
and south, but they are held to include, until 
the boundaries of the claim are definitely locat¬ 
ed by the erection of monuments, a line drawn 
from the place of discovery to any point be¬ 
tween north 45 degrees east and north 45 de¬ 
grees west in the northerly direction, and like¬ 
wise any point between south 45 degrees east 
and south 45 degrees- west in the southerly di¬ 
rection (2). And the statute of Idaho has 
gone further even than this, for it provides 
that at the time of marking the boundaries the 
locator may mark them in any direction that 
will not interfere with rights or claims existing 
prior to his discovery (3). 

The prospector or locator should not post 
his center end stakes at the time of erecting his 
temporary monument and posting his notice 
unless he knows definitely the course or strike 
of his ledge, for by so doing, he is giving a 
definite notice to subsequent locators of the 
center line that he intends to claim, and he 
cannot thereafter, during the time prescribed 
by law for perfecting his location, change the 
course to the prejudice of intervening 
rights (4). 


2G 


2. Marking the Boundaries. 

Within ten days from the date of discovery 
he must mark the boundaries of his claim by 
establishing at each corner thereof and at any 
angle in the side lines a monument marked 
with the name of the claim and the corner or 
angle it represents. When from any cause, a 
monument cannot be safely planted at the true 
corner or angle, it may be placed as near thereto 
as practicable, and so marked as to indicate 
the place of such corner or angle. 

Monuments may be made of any such ma¬ 
terial or form as will readily give notice, and 
when of posts or trees, they must be hewn and 
marked upon the side facing towards the dis¬ 
covery, and must be at least four inches 
square or in diameter. Monuments must be 
at least four feet high above the ground and 
trees must be so hewn as to readily attract at¬ 
tention. 

This is the statute law of Idaho (5). Most 
of the mining States and Territories have sim¬ 
ilar statutes. The statutes of the United States 
provide that the location must be distinctlv 
marked on the ground so that the boundaries 
can be readily traced (6). But, as remarked 
above, most of the mining States have defined 
by statutes how the location shall be marked 
on the ground, and the requirements of the 


State or Territorial law in this respect must 
be followed. 

Within ten days from the date of discovery 
he must mark the boundaries of his claim. 
Colorado, Arizona and Washington fix the 
time at ninety days, South Dakota and Wyo¬ 
ming at sixty days, Utah and Oregon at thirty 
days, New Mexico 120 days.. 

It is very important that the boundaries of 
the claim should be marked within the time 
required by law, for a neglect on the part of 
the locator to perfect his location, or at least to 
proceed with due diligence to perfect it within 
the time, raises a presumption of abandonment, 
and other prospectors have a right to assume 
that he does not intend to go any further with 
his location. In fact, it has been held that a 
failure to mark the boundaries and post the no¬ 
tice within the time allowed by law leaves the 
ground in the same condition as if nothing 
had ever been done, and it is open to location 
by any person who may first perfect his lo¬ 
cation as required by law (7). But it will not 
inure to the benefit of any person who initiated 
his right or attempted to locate during the ten 
days allowed by law before marking the bound¬ 
aries (8). 

The failure to mark the location as required 
by law is fatal to its validity. 

The fact that it is difficult to get to a cor- 


2S 


ner to erect a stake, does not excuse a failure 
to set proper stakes. The statutes of Idaho, 
Nevada, Utah and Wyoming provide that in 
such case a post or monument may be placed 
as near the real corner or angle as practicable 
and marked so as to indicate the place of such 
corner or angle, and such right would seem 
to exist in all the states. It is only where the 
actual corner or angle cannot be staked with 
safety, that witness stakes may be used, for ex¬ 
ample, when the corner or angle is on the side 
of a precipitous mountain where the locator 
could not go without great danger, or in the 
channel of a stream. 

Every claim, to constitute a valid location, 
should have two end lines and two side lines. 
The end lines are those that cross or cut the 
vein or lode, and the side lines run parallel with 
the vein or lode. It makes no difference what 
the locator intended as his end lines or side 
lines, his end lines are those that cross or cut 
the vein or lode (9). If he has by mistake lo¬ 
cated his claim crosswise of the vein then his 
side lines become his end lines and instead of 
his having 1500 feet on the vein or lode he has 
only 600 feet, or less, if his claim is less than 
600 feet in width. It is, therefore, very import¬ 
ant that the true course or strike of the ledge 
should be determined before making the perma¬ 
nent location, for having once set the stakes 


and marked the boundaries, no change can be 
made that will in any manner interfere with the 
rights of others. 

Another important matter to bear in mind is, 
that the end lines must be parallel. It is 
through and by virtue of parallel end lines that 
the locator secures the right to follow his vein 
on the dip beyond his side lines. The law con¬ 
templates that he shall never take more of the 
ledge on the dip, no matter how deep he may 
go, or how far he may depart from his side 
lines, than is included within the boundaries 
of his end lines on the surface (io). A failure 
to make the end lines parallel, loses to him his 
extra lateral rights, and he is confined on the 
dip to a vertical plane drawn downward from 
his side line. He may for the purpose of de¬ 
fining or securing his underground or extra¬ 
lateral rights, not in conflict with any rights of 
a prior locator, lay his lines within, upon or 
across the surface of a prior location (n). 

His side lines need not be parallel, but in no 
event can the width at the wider end of the 
claim be greater than 300 feet on each side from 
the center of the vein or lode. It often hap¬ 
pens that a locator desires to take an irregular 
piece of ground, a fraction not occupied by 
prior locators; this he may do, bearing in mind 
however that he must, if he wishes to follow 
hfs vein on the dip, have two end lines and 


30 


that these must be parallel; in order to get the 
full length of the ledge that is unappropriated 
he may, as stated above, set his stakes on prior 
locations for the purpose of making his end 
lines parallel. 

Under the statute of Idaho, five stakes are 
always necessary to make a valid location, one 
at each of the four corners and one at the place 
of discovery, and if there are any angles in the 
side lines, as many more posts or stakes or 
monuments as there are angles. There can be 
no angles in the end lines, they must be straight 

(12). 

In Arizona and New Mexico nine posts or 
monuments are required, one at each corner 
and one at the center of each end and side line, 
and one at place of discovery. In Colorado, 
seven posts or monuments, one at each corner, 
one at the center of each end line and one at the 
place of discovery. In Montana, the same as in 
Idaho. I11 Nevada the same as in Idaho. In Or¬ 
egon seven posts or monuments, one at each 
corner, one at the center of each end line and 
one at place of discovery. In South Dakota, 
nine posts or monuments, one at each corner, 
one at the center of each end and side 
line, and one at the place of discovery. 
In Utah, the same as in Idaho. In Wash¬ 
ington, five posts or monuments, one at 
each corner and one at place of discovery, and 


31 


if the claim is covered in whole or part by brush 
or trees, such brush shall be cut and trees be 
marked or blazed along the lines of the claim. 
In Wyoming, seven posts or monuments, one 
at each corner, one at the center of each end 
line, and one at place of discovery. 

Monuments of stone are often used to mark 
the boundaries, but the usual monument is a 
post, sometimes trees or stumps are used when 
they happen to be located at the proper place to 
mark a corner or angle. Whatever kind of 
monument is used it must, in Idaho, be at least 
four feet high above the surface of the ground, 
and if a tree or post it must be at least four 
inches square or in diameter. In Arizona, 
whether it be stone or a post it must be three 
feet high. In Colorado, no size is prescribed, 
they must be substantial and sunk in the 
ground. In Montana, when a post is used ic 
must be at least four inches square by four feet 
six inches in length set one foot in the ground, 
with a mound of earth or stone four feet in di¬ 
ameter by two feet in height around the post. 
When a stone is used, not a rock in place, it 
must be at least six inches square and eighteen 
inches in length, set two-thirds of its length in 
the ground. In Nevada, when a post is used 
it shall be at least four inches square or in di¬ 
ameter firmly set in the ground or in a mound 
of earth or rock and must rise at least three 


feet above the surface, if a stone, it shall be at 
least six inches wide and eighteen inches long 
set firmly in a mound or in the earth so that at 
least six inches in height of said stone shall be 
plainly visible from all sides; a monument of 
stones shall rise at least three feet above the 
surface of the ground. In Oregon, if posts are 
used they shall be at least three feet high above 
the surface of the ground and not less than 
four inches squaTe or in diameter; if of earch 
or stone at least two feet high. In South Da¬ 
kota they are to be substantial posts sunk in the 
ground. In Utah, monuments must be at least 
four feet high above the surface of the ground 
and when posts or trees are used they must be 
at least four inches square or in diameter. In 
Washington, monuments must be at least three 
feet high, and if posts are used at least four 
inches in diameter. In Wyoming, substan¬ 
tial monuments of stone or posts sunk in the 
ground. 

Every post or tree must be hewn on the side 
facing the discovery, and on this hewn place 
must be marked the name of the claim and the 
corner or angle the post or tree represents. 
Nearly every state requires the posts to be hewn 
and marked on the side facing discovery or the 
side facing the claim, but not all require the 
name of the claim; there can, however, be no 
objection to marking the name on each post, for 


example: "Diana S. W. Cor.” for southwest 

corner. “Diana East Side Line” for an angle 
in the east side line, or for the center of said 
line. 


3. Location Notice:. 

It would seem that the orderly manner in 
which the steps toward perfecting a location 
should proceed, is first, the discovery; second, 
the preliminary notice; third, the marking of 
the boundaries; fourth, the posting of the 
location notice, and this is the order provided 
in Idaho. In South Dakota, Washington and 
Wyoming the posting of the notice and the 
marking of the boundaries may also be at the 
same time or one may precede the other, the 
statutes of each of said states providing, that 
before filing his notice for record, he must post 
his notice and mark his boundaries; such is also 
the law of Arizona and Colorado. In Oregon 
the locator has thirty days after posting his 
notice to mark his boundaries. In New Mexi¬ 
co the locator marks his boundaries and posts 
his notice at date of discovery, or under the 
decisions of the courts within a reasonable time 
allowed under the preliminary notice to deter¬ 
mine the strike of the ledge. In Utah he has 
thirty days after posting his notice to mark 
his boundaries. It would also seem from the 


34 


reading of the statute in Montana and Nevada 
that both acts should follow closely upon dis¬ 
covery. 

Having marked the boundaries of the claim 
by establishing monuments as required by law, 
the next step is to prepare and post the loca¬ 
tion notice. 

At the time of marking his boundaries, he 
must post at his discovery monument his no¬ 
tice of location in which must be stated: 
First, the name of the locator; Second, the 
name of the claim; Third, the date of dis¬ 
covery ; Fourth, the direction and distance 
claimed along the ledge from the discover}^. 
Fifth, the distance claimed on each side of 
the middle of the ledge; Sixth, the dis¬ 
tance and direction from the discovery mon¬ 
ument to such natural object or permanent mon¬ 
ument, if any such there be, as will fix and de¬ 
scribe in the notice itself, the location of the 
claim; Seventh, the name of the mining district, 
county and state. 

From an examination of the above require¬ 
ments, it will be seen that the first four things 
required to be stated, are the four matters re¬ 
quired to be stated in the preliminary notice 
posted at the time of making the discovers. 
These four requirements were discussed at 
length under that subdivision and need not be 
taken up again, except to call attention to the 


fact that now the boundaries of the claim have 
been marked on the ground, the direction along 
the ledge either way from the discovery, which 
is required to be given under the fourth state¬ 
ment, will be governed and controlled by the 
monuments erected to mark the boundaries 
of the claim. The matter required to be stated 
under the fifth head has also been sufficiently 
discussed in the preceding pages. It is well to 
call attention here to the necessity of having the 
ground which has been staked off, correspond 
with the length and width claimed in the notice. 
After the notice is posted and has been record¬ 
ed it defines the amount claimed, and if the 
stakes are so set as to include more, they should 
be pulled in until they correspond with the no¬ 
tice. A claim is not invalid by reason of the 
fact that the stakes are set out so as to include 
more ground than the law allows or than the 
notice claims, unless in those cases where they 
are set so far beyond the distances claimed that 
a person cannot, from the description in the no¬ 
tice, find them (13), but no title or right to 
possession accrues to the locator, to any ground 
beyond the amount claimed, even though it be 
within the boundaries as marked on the ground. 

The sixth matter to be stated in the location 
notice is a very important one and a neglect to 
include it in the notice will render the location 
void. It fixes the location of the claim, or to use 


tile expression common among miners, it ties 
the claim. 

The reasons for requiring the claim to be 
tied are as follows: First, to prevent the loca¬ 
tor from shifting his claim, or, in other words, 
to guard against floating locations; Second, to 
enable a person from an examination of the no¬ 
tice itself, as afterwards recorded, to go witu 
reasonable certainty upon the claim. 

The claim should be tied with such reasona¬ 
ble certainty, that-the locator, having once made 
his location, cannot move his stakes or change 
his location so as to cover ground not included 
within his original location, and so that a pe r¬ 
son may know from the description in the no¬ 
tice found in the recorder’s office where to go 
to find the claim. 

In order to do this, it is necessary that the 
natural object or permanent monument should 
be certain and fixed, it will not do to tie to a 
shifting object, nor to an object that is so large 
that it offers no guide to one seeking the loca¬ 
tion. The Supreme Court of Idaho has held 
that a reference to the mouth of “Big Canyon” 
is not good, there being no point designated ar 
the mouth of the canyon from which to start 
(14), also the Supreme Court of Utah says that 
“five miles south of the Denver and Rio Grande 
Railroad' is not' good, there being no porn. 


37 


designated on the railroad from which to 
start (15). 

A Natural Object is any prominent fixed 
object placed by nature in the landscape, such 
as a prominent mountain, a canyon, a river, a 
tree, a bluff of rocks, and any of these objects 
may be referred to, provided however, the ref¬ 
erence to the object be so clearly defined in its 
relation to the location, that the location may 
be found with reasonable certainty. Remem¬ 
ber what was said above about the mouth of 
“Big Canyon,” some point in the canyon should 
be designated, also some point on a river bank, 
some prominent point or peak on the mountain, 
and if a tree is referred to it should be hewn 
and marked so it can be easily identified, and 
the notice should describe it as hewn and de¬ 
scribe the marks placed upon it. 

A Permanent Monument is some object 
placed permanently in or upon the ground, such 
as monuments of rocks erected for the purpose 
of a tie, a shaft, or a well known mining claim. 
In tying to a patented or well known mining 
claim the locator is strongly urged to make his 
tie to some corner or place on the claim re¬ 
ferred to, for while the courts have quite gen¬ 
erally held that a reference to a patented or well 
known mining claim is good, yet the failure to 
tie to some designated point on the claim, has 
'given rise to much litigation, and the locator is 


38 


generally required in cases of adverse suit, io 
show that his reference is such that the claim 
can be readily found. 

Having selected the natural object or perma¬ 
nent monument to which the claim is to be tied, 
the locator is required to also include in his 
notice the course and the distance from the place 
of discovery or discovery monument to the nat¬ 
ural object or permanent monument. 

It is just as important that the course and 
distance be given as that the object or monu¬ 
ment should be selected, one is of no value with¬ 
out the other. The distance, whether great or 
little, of the natural object or permanent monu¬ 
ment from the claim, or the place of discov¬ 
ery, is not material, provided the course and 
distance named in the notice is correct or ap¬ 
proximately so, it is well however to select an 
object as near to 'the discovery monument as 
practicable. The object may be within or 
without the boundaries of the claim. 

If the location is in a section of the country 
where no natural objects or permanent monu¬ 
ments are to be found, the locator should erect 
a monument of rocks or fix a stake firmly, in 
the ground, mark the rocks or the stake with 
some letters, or characters, so that it may be 
identified, and then tie the claim to this mon¬ 
ument or stake, in the same manner that he 
would tie to any other object or monument. 


The locator should also give a general descrip¬ 
tion of the locality of the claim by naming the 
mountain, the canyon, the stream it is on or in, 
or the distance, and direction from some town 
or well known point. 

The seventh matters to be stated in the no¬ 
tice are the Mining District, County and State. 
If no Mining District has been established cov¬ 
ering the locality where the location is made, 
the locator may use in place of the Mining Dis ¬ 
trict the words “Unorganized Territory.” 

The notice is not required to be in any par¬ 
ticular form, the following is recommended as 
convenient and as complying with the law : 


NOTICE OF LODE LOCATION. 

To Whom It May Concern : 

Notice Is Hereby Given, That John Doe, 
a citizen of the United States, of the age of 
twenty-one years, having on the 15th day of 
November, ipai, discovered a vein or lode of 
quartz in place, bearing Gold, within the limits 
of the claim hereby located, has this day, under 
and in accordance with the Revised Statutes of 
the United States, Chapter VI, Title 32, the 
laws of the State of Idaho, and the local rules, 
customs and regulations of miners, located hf- 
'icen hundred linear feet of this vein or lode, 



40 


with surface ground three hundred feet in 
width on each side from the center of said vein 
or lode. 

Said location is hereby named and shall be 
known as the Diana Lode Mining Claim, and is 
situated in the Columbia Mining District, Coun¬ 
ty of Boise , State of Idaho . 

The place of discovery is evidenced by a 
monument consisting of a fir post, four feet 
high above the ground and four inches in diam¬ 
eter to which post this notice is conspicuously 
attached. The claim extends from said monu¬ 
ment and notice, along the vein or lode one 
thousand feet in a northerly direction and five 
hundred feet in a southerly direction. 

This claim is located on the west side of Mil¬ 
ler Mountain, two miles east of a point on 
Clear Creek where the State ivagon road first 
crosses said creek above the Payette River, and 
a granite rock ten feet high and six feet wide, 
marked X on the side facing the discovery, 
bears northeast five hundred feet from the dis¬ 
covery monument. Said claim is bounded on 
the north by the Ibex lode claim, on the west 
by the India lode claim, on the south by the 
Triumph lode claim and on the east by the Coin 
lode claim. 

The exterior boundaries of said claim are 
distinctly marked on the ground by fir posts, 
one being erected at each corner of said claim, 


41 


each post being four feet high above the ground, 
four inches in diameter, and hewn and marked 
on the side facing the discovery with the name 
of the claim and the corner it represents. 

Name of Locator, John Doe. 

Dated on the ground this 25th day of No¬ 
vember, 1901. 


If the person making the location is not a 
citizen, but has declared his intention to become 
one, the words, “a citizen of the United States,” 
should be stricken out and these words insert¬ 
ed, “having declared his intention of becom¬ 
ing a citizen of the United States”; so if there 
are two or more locators, all the names should 
be inserted at the beginning and signed at the 
end. 

If gold is not the metal found then use in 
place thereof the proper word, silver, lead, cop¬ 
per, or two or more of these combined as the 
circumstances warrant. 

The description of the kind of monuments 
used, the directions and distances along the vein 
or lode from the discovery monument, the gen¬ 
eral location of the claim, and the tie by refer¬ 
ence to some natural object or permanent mon¬ 
ument, must be changed to suit the conditions 
ill each individual case. 



The prospector and locator is urged to take 
great and particular pains in the preparation of 
his notice. Remember that the validity of the 
location depends upon a substantial compliance 
with the law, and a little extra time spent in a 
careful preparation of the notice, will save much 
worry, and perhaps expensive litigation in the 
future. 

Mining claims may be located by an agent, 
so that one person in locating a claim may lo¬ 
cate for himself and others, or for others with¬ 
out including his own name, and when he so 
locates, he is authorized to write in the notice 
and sign at the end of it the names of all those 
for whom he locates. But no notice must claim 
more than one location no matter how many 
locators there are. If it does so it is absolutely 
void. 

The notice being properly prepared, must be 
posted at the discovery monument. 

The notice should be so posted that it can be 
easily seen and read. It is not necessary nor 
advisable to spread it out and tack it to the 
monument, for it is then soon destroyed by the 
elements. A box, if one is convenient, may be 
nailed to the monument, and a cover of wood 
or oil cloth that can be easily raised placed 
over it, the notice may then be placed in the 
box where it is protected from the weather; or 
a tin can fastened to the monument so that the 


43 


rain and snow cannot get in, may contain the 
notice. All that is required is that the notice 
be posted so that it or the receptacle containing 
it may be easily seen, and the notice may be 
readily gotten at for the purpose of reading. 

(1) 1899, 5th Ses. p. 440. 

(2) Wiltsee v. King of Arizona M. & M. Co., (Aviv' 

GO Pac. 896. 

(3) 1899, 5th Ses. p. 440. 

(4) Wiltsee v. King of Arizona M. & M. Co., (Ariz .; 

00 Pac. 890. 

(5) 1899, 5th Ses. p. 440. 

(6) Revised Statutes of U. S. Sec. 2324. 

(7) Patterson v. Tarbell, 20 Ore. 29. 

Lockhart v. Wills, (N. M.) 54 Pac. 330. 

(8) Bramlett v. Flick (Mont.) 57 Pac. 809. 

(9) Del Monte M. & M. Co. v. Last Chance M. & M. 

Co., 171 U. S. 55. 

(10) Del Monte M. & M. Co. v. Last Chance M. & M. 

Co., 171 U. S. 55. 

(11) Del Monte M. & M. Co. v. Last Chance M. & M. 

Co., 171 U. S. 55. 

(12) Walrath v. Champion Min. Co. 171 U. S. 293-312. 

(13) Ledoux v. F-orester, 94 Fed. GOO. 

(14) Clearwater Short Line Ry. Co. v. San Garde, 

(Idaho) 01 Pac. 137. 

(15) Larger v. Le Sieur, (Utah) 30 Pac. 303. 


44 


CHAPTER IV. 


WORK NECESSARY TO CONSTITUTE 
VALID LOCATION. 

Within sixty days after such location the 
locator, or his assigns, must sink a shaft upon 
the lode to the depth of at least ten feet from 
the lowest part of the rim of such shaft at 
the surface, and of not less than sixteen square 
feet area. This is the statute law of Idaho. It 
is the same substantially in Colorado, Wyo¬ 
ming, South Dakota and Oregon. In Arizona, 
Montana, New Mexico and Washington ninety 
days are allowed in which to sink the shaft. In 
Nevada 120 days, and in Utah $50 worth of 
work must be done within ninety days. 

There is no provision in the statute of Idaho 
requiring this shaft to be sunk at the place A 
discovery, the language is “upon the lode.” In 
Wyoming the language is “upon the discov¬ 
ered lode.” In Utah “fifty dollars worth of 
work upon the claim.” In all the other states 
and territories the shaft is referred to as “the 
discovery shaft.” 

The apparent object in sinking the shaft is to 
demonstrate that a well defined ledge has been 



45 


discovered, for the law provides that the shaft 
must be upon the discovered lode. If at the 
depth of ten feet no lode or well defined crevice 
is opened up, then the shafi must of necessity 
be sunk deeper, for it is essential that the lode 
or crevice shall show in the shaft. This shaft 
must be ten feet deep from the lowest part of 
the rim of the shaft at the surface. It is al¬ 
ways advisable to sink deeper than ten feet so 
as to guard against any claim by others that 
the shaft was not sunk to a proper depth, for 
the caving of the sides and the accumulation 
of debris will tend to fill the shaft and lessen 
the depth. 

“Any excavation which shall cut the vein 
or lode ten feet from the lowest part of the 
rim of such shaft and which shall measure 160 
cubic feet in extent shall be considered a com¬ 
pliance with the law.” 

The wording of this provision is peculiar, it 
would seem to mean that a shaft must be sunk 
but that the shape of the shaft is immaterial 
so long as it cuts the vein ten feet below the 
lowest part of the rim and measures 160 cubic 
feet. 

In Colorado the statute reads, “any open cut, 
cross-cut or tunnel which shall cut a lode at 
the depth of ten feet below the surface shall 
hold such lode the same as if a discovery shaft 


4 (> 


were sunk thereon,” and such is the language 
in most of the states. 

It will be noticed that the wording of Colo¬ 
rado is very different from that of Idaho. In 
one it reads, ten feet below the surface, and in 
the other, ten feet below the lowest rim of the 
shaft. 

It would seem to be advisable in Idaho to ad¬ 
here to the shaft method of doing this work 
until the Supreme Court of the State has had 
occasion to construe this law. 

The discovery is a fact totally disconnected 
with this statute tequiring the sinking of a 
shaft. By the discovery of a vein or lode of 
mineralized rock in place the prospector initi¬ 
ates his title or claim, but the shaft is a part 
of the process of location. The discovery must 
be made before the location, but the ten foot 
shaft is to be sunk after the location. In Col¬ 
orado it is the discovery shaft and therefore 
precedes the location, so in other states where 
it is the discovery shaft. 

No location is complete until the shaft is 
sunk to the depth and extent required by law. 
Sixty days after location is the time allowed 
within which to do this work, and the doing it 
completes the location, and the ground is not 
subject to relocation for a period of ninety 
days after the date of location. 


47 


Having made a valid discovery, marked the 
boundaries of the claim, posted the location 
notice, and sunk a shaft to the depth of ten feet 
on the lode, the location is complete so far as 
the law requires anything to be done upon or 
about the claim, and gives the locator the ex¬ 
clusive right to the possession and enjoyment 
of the claim for ninety days after the date of lo¬ 
cation. But ninety days is the limit of his 
right under the steps so far taken. If he 
would secure a permanent right to possess 
and enjoy his claim he must within the ninety 
days file his notice of location for record. In 
Nevada the work may be done after the loca¬ 
tion notice is filed. 


48 


CHAPTER V. 


RECORDING LOCATION NOTICE. 

Within ninety days after the location of the 
claim, the locator, or his assigns, must file for 
record in the office of the County Recorder of 
the county, or of the Deputy Recorder of the 
mining district in which the claim is situated, 
a substantial copy of his notice of location. Ari¬ 
zona, Montana, Nevada and Washington also 
allow ninety days; Colorado and New Mexico 
three months; Utah thirty days, and South Da¬ 
kota and Oregon sixty days. 

At the time of preparing the notice of loca¬ 
tion to be posted on the claim it is well to make 
it in duplicate, for the statute provides that 
the notice to be recorded shall be a substantial 
copy of the notice of location. Some of the 
States provide for more detail in the notice 
that is filed for record than in the one posted 
on the claim, but none except Montana and 
Nevada, which States require a description of 
the corners and the location and size of the dis¬ 
covery shaft, require a more full and complete 
notice, even for record than Idaho requires for 
posting, so that a substantial copy of the form 
of location notice heretofore given will answer 
the requirements of any of the mining States. 



49 


Before, however, this notice is entitled to be 
recorded an affidavit must be written on or at¬ 
tached to it and subscribed and sworn to by 
one of the locators named in the certificate. 

The affidavit is required to be in substan¬ 
tially the following form: 


State of Idaho, ) 

County of Boise. ) ss ’ 

I, John Doe, do solemnly swear that I am 
a citizen of the United States of America, or 
(have declared my intention to become a citi¬ 
zen of the United States ) and that I am ac¬ 
quainted with the mining ground described in 
this notice of location, and herewith called the 
Diana Lode Mining Claim; that the ground 
and claim therein described or any part thereof 
has not, to the best of my knowledge and 
belief, been located according to the laws of the 
Lffiited States and of this State, or if so located, 
that the same has been abandoned or forfeited 
by reason of the failure of such former loca¬ 
tors to comply in respect thereto with the re¬ 
quirements of said laws, and that I have opened 
new ground to the extent or depth of ten feet 
as required by the laws of Idaho. 

Signature John Doe. 

Subscribed and sworn to before me this 
23 rd day of February, T902. 



It would seem that when the location has 
been made by an agent, and he is acquainted 
with the facts required to be stated in the af¬ 
fidavit, that he may make the affidavit, and the 
courts have so held. 

The affidavit must be written on or attached 
to the notice and subscribed and sworn to at 
the time of filing it for record or before filing 
• it. In other words, at any time after the loca¬ 
tion is completed by marking the claim, posting 
the notice, and sinking the shaft, so that the 
person making the affidavit is able to swear to 
the facts required to be stated. The affidavit 
may be sworn to before any person authorized 
to administer oaths. 

The County Recorder, or his deputy, or the 
Deputy Recorder for the mining district, a 
Notary Public, a Probate Judge, a Justice of 
the Peace, are all authorized to administer 
oaths and are the officers usually called upon 
to do this work, but none of these officers are 
authorized to administer oaths out of the coun¬ 
ty for which they were elected or appointed, 
and a Deputy Recorder for a mining district, 
cannot administer oaths out of his district or a 
Justice of the Peace out of his precinct. 

The County Recorder of each county is au¬ 
thorized to appoint a deputy at any place where 
he may deem it necessary, and in all places 
more than twenty miles from an existing office 


51 

whenever ten or more mining locators inter¬ 
ested, petition for the appointment of a deputy. 
If the Recorder fails to appoint a deputy for ten 
days after a petition in writing has been pre¬ 
sented to him, the resident miners of the dis¬ 
trict may appoint one of their number to act 
as the Recorder, but such appointment by the 
miners is only temporary, and whenever the 
Recorder of the county makes an appointment, 
the authority of the person elected by the min¬ 
ers ceases. The statutes of the several States 
should be examined on this subject. It is not 
necessary to discuss them here. 

It is important that the Deputy Recorder for 
the district be legally qualified to perform the 
duties of the office, else the oaths administered 
by him and his record may be void, and the 
loss of valuable claims may be the result. Un¬ 
less the County Recorder has appointed, the 
first step to be taken is to petition him in writ¬ 
ing to make an appointment. If he fails to do 
so for ten days after receiving the petition then 
the miners may elect, provided of course there 
is no Recorder’s office or Deputy Recorder’s 
office within twenty miles. An election without 
petitioning the County Recorder would be void, 
and the deputy so elected would have no au¬ 
thority. 

The location notice may be filed for record 
with the County Recorder or with the Deputy 


Recorder for the district. The fee for record¬ 
ing, including administering the oath is two 
dollars, which must be paid in advance. The 
deputy Recorder is entitled to retain one-half 
of this fee and must remit the other half to the 
County Recorder. 

The Deputy Recorder of the district must 
transmit once each month to the County Re¬ 
corder at the county seat all notices filed with 
him and not previously transmitted. He must 
keep a book in which must be recorded all no¬ 
tices filed with him; said book must be indexed 
with the names of all locators arranged in 
alphabetical order. 

A Deputy Recorder for the district has no 
authority to perform any official duties except 
to administer oaths to affidavits attached to 
mining location notices, record location notices, 
and to make and certify copies of his record. 
He must keep a seal but can use it for no pur¬ 
pose except to authenticate certificates attached 
to transcripts of his record. 

The filing of the location notice for record 
completes all the steps necessary to constitute 
a valid location; the ground appropriated is 
now completely withdrawn from the public do¬ 
main and the locator is entitled to the exclusive 
possession and enjoyment of all the surface 
ground included within his boundaries so long 
as he complies with the law respecting annual 


assessment, and in addition he has the right to 
follow the ledge on its dip, no matter how far it 
departs from the perpendicular planes of his 
side lines, and the right also to all other veins 
or lodes the tops or apexes of which lie within 
his surface boundaries; but he cannot follow 
his ledge on its strike beyond perpendicular 
lines or planes extended downward on the dip 
through his end lines, and the end lines of the 
discovery ledge, the ledge on which the location 
is based, are to be taken as the end lines of all 
ledges or veins found within the surface 
boundaries (i). Although, as stated above, he 
has a right to follow his ledge on its dip, even 
though it depart from his own claim and runs 
under another valid location, yet he must do 
so from his own premises, for he cannot enter 
upon the surface ground of the other claim for 
the purpose of working his own. 

In South Dakota a certified copy of the re¬ 
corded certificate must be posted on the claim 
within ninety days from time of posting the 
original notice. 

(1) Walroth v. Champion Min. Co., 171 U. S. 293. 


54 


CHAPTER VI. 


PLACER CLAIMS. 

All the preceding pages of this pamphlet have 
been confined to the discussion of lode claims. 
In many particulars the location of a placer 
claim follows the general requirements for lode 
locations, but it is necessary for the guidance 
of prospectors that a short discussion of placer 
locations be had here, so that they may thor¬ 
oughly understand wherein the methods of 
procedure differ. 

A placer claim is a location in which gold 
or other metalic mineral is found loose in sand 
or gravel and not in the vein or in place, or in 
which any other mineral, not known as a me¬ 
talic mineral is found whether in place or not. 
Under the latter part of this definition may 
be included alum, soda, asphaltum, sulphur, 
borax, mica, slate, gypsum, phosphate, and oil, 
also building stone and limestone. 

All forms of deposit excepting veins of 
quartz or other rock in place, are subject to 
entry as placers. 



DO 

i. Size of Cfaim. 

No placer location can include more than 
twenty acres to each individual, and in no 
event can it exceed 160 acres no matter how 
many locators there may be. 

This is construed to mean that one person 
may locate twenty acres in a single claim, two 
persons may locate forty acres, three persons 
sixty acres and so on to 160 acres, which 
amount may be located as one claim by eight 
or more persons. It requires eight persons to 
locate 160 acres, but no larger claim can be 
located no matter how many persons there may 
be. These persons must be bona fide, or real 
persons, and the use of names with agreement 
to reconvey without consideration has been 
held void as against public policy (i). 

On lands on which the government surveys 
have been made placer claims should be located 
so as to conform as nearly as practicable 
with the rectangular subdivisions of such sur¬ 
veys. 

It is quite impossible for the prospector to 
follow this provision of the law except whe ,- e 
the sections have been subdivided, therefore, 
the land office has not enforced the rules, but 
has allowed the prospector to disregard it, re¬ 
quiring him to locate according to government 


50 


surveys only in those sections that are sub¬ 
divided ( 2 ). 

No particular shape or form in which the 
claim shall be located is prescribed by law, and 
the prospector may locate in such shape as 
will be most advantageous to him, provided, 
however, that he follows the lines of survey 
on sub-divided sections. It is often of ad¬ 
vantage to him in locating along a stream ro 
have a long narrow claim, and on unsurveyed 
lands he may suit his convenience in this re¬ 
spect, unless there are local rules or regula¬ 
tions of the mining district defining the size 
of his claim. On surveyed lands, while he 
must follow the lines of the survey yet he 
may choose eighty rods in length along the 
stream and only forty in width or vice versa. 

As there are no extra lateral rights in a 
placer claim, there being no ledge to clip be¬ 
yond the side lines, there is no necessity that 
the opposite lines should be parallel. It is well 
however to make them parallel when it can be 
conveniently done, for should a vein or lode be 
discovered within the boundaries, and the 
placer locator apply for a patent on his placer 
claim with a statement that it contains a vein 
or lode, his extra lateral rights on such vein 
or lode would be governed by the parallelism 
of the lines that crossed the vein or lode. 


2. Discovery. 


As in lode claims so in placers, a discovery 
of mineral is essential to a valid location, and, 
to prevent the tendency to locate placer 
ground because of its nearness to lode claims, 
without its having any real value as a placer 
claim, the general land office has held that the 
claim must contain mineral in paying quanti- 
ties ( 3 ). 

As in lode claims, the discovery must be 
within the boundaries of the claim as after¬ 
wards located. 

The discovery should precede the location 
for the same rule prevails as in lode claims, 
that the right to locate is founded upon the 
fact that' the prospector has found something 
to locate. 

A separate discovery is not required on; 
each twenty acres where there has been a joint 
location of 160 acres by an association of eight 
or more persons ( 4 ), and the same rule will 
prevail as to a claim of forty, sixty, eighty or 
more acres located by the proper number of 
persons. 

3. Marking the Boundaries. 

After making a discovery of gold or other 
metalic mineral in sand or gravel, or a discov¬ 
ery of oil, soda, sulphur, building-stone, or 


58 


other substance the boundaries of the claim 
should be marked in much the same manner 
as is required for marking the boundaries of 
lode claims. 

The time allowed after the discovery within 
which to stake the claim is quite different in 
the several States, and in those States where 
no time is fixed by law the same rule prevails 
as in lode locations, that is, a reasonable time, 
to be judged by the conditions and circum¬ 
stances, will be allowed in which to stake. 
Where no time is fixed a reasonable degree of 
diligence in perfecting the location must be 
shown. 

In Colorado, thirty days after discovery is 
allowed. In Washington thirty days, but he 
must immediately post his notice of location. 

In the State of Colorado a preliminary notice 
such as is required in lode claims is required 
to be posted at the place of discovery, and 
the locator is advised, in whatever State or 
Territory he locates to post a similar notice. 
By so doing he publicly announces his inten¬ 
tion to locate a placer claim and secures 'to 
himself a reasonable time to mark his bound¬ 
aries. 

This notice may be very short and concise 
but should contain the following information; 
First, Name of claim; Second, Name of loca- 


59 


tor; Third, Date of Discovery; Fourth, Num¬ 
ber of acres claimed. 

The following form is suggested: 


Notice is Hereby Given that I, the under¬ 
signed, having this 15 th day of December, 
1901, discovered gold in sand and gravel do 
hereby claim twenty acres for placer mining 
purposes under the name of Gold Bar placer 
claim with a reasonable time to complete my lo¬ 
cation. 0 ,0 7/ 

Samuel Small. 


In those States where a time for staking is 
fixed, the time may be inserted in place of the 
words “reasonable time.” 

As above stated the boundaries are marked 
much in the same manner as in lode claims. 
A substantial post or monument should be 
placed at each corner of the claim. If posts 
are used they should be at least four inches 
square or in diameter and four feet high above 
the surface of the ground, or the size pre¬ 
scribed for lode claims. In Arizona they are 
required to be four feet six inches high. Stone 
monuments should also be four feet high. 

Unless the State or Territorial law provides 
otherwise, a stake or monument should be 
erected at or near the place of discovery, and 




(50 

to this stake or monument the location notice 
should be attached. In Idaho the law provides 
that the location notice may be posted on one 
of the corner stakes. 

Each corner stake should be hewn and 
marked with the corner it represents and the 
name of the claim. 

All placer claims must be staked or marked, 
and a failure to stake invalidates the claim. 
Even where the claim is so located as to con¬ 
form to the subdivisions of the government 
surveys, staking is necessary. 

Nevada provides that where the claim is so 
located as to conform to legal subdivisions of 
the public surveys it need not be staked but 
there is some doubt as to whether, in such a 
case, the boundaries of the claim can be said 
to be marked. 

4. Location Notice. 

While the several mining States and Ter¬ 
ritories have through their legislatures given 
considerable attention to lode locations, and 
have defined with considerable minuteness and 
accuracy the steps necessary to perfect a valid 
claim to lodes or ledges, but very little attention 
has been given to placer locations, and in most 
instances, with the exception of two or three 
sections of a general character, the location of 


these claims is governed by the local rules and 
regulations of miners. 

There seems to be no general rule as to when 
the location notice should be posted, or any 
well defined knowledge or instruction as to 
what the notice shall contain. It would seem 
from the reading of the statutes that in some 
of the states the original notice posted at the 
time of discovery is the only notice required, 
for example; in Montana the law provides that 
a copy of this notice with additions thereto of 
description of claim by reference to natural 
object or permanent monument, dimensions 
and location of work done, and the location 
and description of each corner with the mark¬ 
ings thereon, shall be recorded within ninety 
days after posting. In Colorado a preliminary 
notice is provided for and the permanent loca¬ 
tion notice is to be posted thirty days there¬ 
after. In Washington only one notice is pro¬ 
vided for, the locator having thirty days after 
posting in which to mark his boundaries, and 
thirty days from discovery to record with the 
County Recorder. 

None of the other States or Territories spec¬ 
ify any time within which the notice must be 
posted or the boundaries marked. It would 
necessarily follow, in all the States and Ter¬ 
ritories having no statute law on this point, 
that the notice must be posted and the bound- 


<32 


aries marked at the time of making the dis¬ 
covery, subject of course to the general rule ; 
laid down by the courts, that a reasonable time ■ 
will be allowed the prospector in which to per¬ 
fect his location. 

As heretofore stated, what is a reasonable 4 
time depends upon the conditions and circum- [ 
stances surrounding each case, but the pros- | 
pector must remain upon his ground, or to use I 
a common expression, stay with it until he has p 
completed the marking of the boundaries and 
has posted his notice. He will not be allowed to 
leave the claim before these steps are taken and r 
go off in search of other ground. By so doing f 
he virtually abandons the claim to the first pe^*- V, 
son who takes the steps required by law. 

Those states which have laws touching the lo- h 
cation of placer claims differ materially as to k 
the contents of the notice. In Colorado, Ari- p 
zona, Montana, Nevada and Wyoming, the no¬ 
tice is required to state the name of the locator, b 
name of the claim, date of discovery, and num- m 
her of feet or acres claimed. But in all these jj 
states the location certificate which is required l. 
to be recorded must contain in addition to the 
above, a reference to some natural object or 
permanent monument, and in some of them 
other additions to the posted notice. 

No good reason can be found why the notice 
to be posted on the claim should not be a full 


03 


and comprehensive description of the claim 
such as is required in lode locations, except in 
those States where time is allowed after posting 
the notice to mark the boundaries, and even 
then the reference to some natural object or 
permanent monument may be made. In Idaho 
and Washington the notice posted on the claim 
is required to be a complete and ■comprehen¬ 
sive notice containing the name of the claim, 
the name of the locator, the date of discovery, 
the dimensions of the claim, the mining district, 
county and State, the distance and direction to 
such natural object or permanent monument as 
will fix and describe the location of the claim. 
In Washington a reference may be made to 
legal subdivisions if on surveyed lands, and 
then no reference to a natural object or perma¬ 
nent monument is required. 

Both of these States provide that the record¬ 
ed notice shall be substantially the same as 
the posted notice. 

While as above stated, the notice to be post¬ 
ed is not required to be as full and comprehen¬ 
sive as the recorded notice, except in Idaho and 
Washington, yet no harm can be done or rights 
lost by making it complete, and much trouble 
and annoyance may be saved by having' the 
posted notice a substantial duplicate of the re¬ 
corded one. 

A meager, loose notice, posted on the claim. 


may lead to a contention that the premises 
claimed in the recorded notice are not the same 
as those claimed in the posted notice, while if 
the two notices were substantially alike this 
contention could not arise. 

The following form is suggested as being a 
sufficient compliance with the law in Idaho and 
Washington, and good as a posted notice in 
any State or Territory having general laws on 
the subject, and as also a sufficient location cer¬ 
tificate for record: 


PLACER LOCATION. 

To Whom It May Conchrn. 

Notice: Is Hereby Given, That I, Samuel 
Small, a citizen of the United States, of the 
age of twenty-one years, having on the 15th 
day of December , 1901, discovered gold in 
sand and gravel within the limits of the claim 
hereby located, have this day, under and in 
accordance with the Revised Statutes of the 
United States, Chapter VI, Title 32, the laws of 
the State of Idaho , and the local rules, cus¬ 
toms and regulations of miners, located twenty 
acres, being 1320 feet in length by 660 feet in 
width, for placer mining purposes. Said placer 
location is hereby named and shall he known as 



the Gold Bar Placer Claim, and is situated in 
the Mammoth Mining District, Owyhee Coun¬ 
ty, State of Idaho. 

This claim is located on the South bank of 
Snake River, two miles east of Walter’s Ferry 
(if the land is surveyed and subdivided add) 
and is the west half of the southeast quarter of 
the northwest quarter of Section 30 , Toum- 
ship 1 , South of Range 2 West of Boise Merid¬ 
ian ), and the west bank of Rabbit Creek at 
the point where it joins Snake River bears east 
2000 feet from the monument to which this 
notice is attached. 

The exterior boundaries of said claim are 
distinctly marked on the ground by pine posts, 
one being erefcted at each corner of said claim, 
each post being four feet high above the ground, 
four inches in diameter, and hewn and marked 
with the name of the claim and the corner it 
represents. 

Name of locator, Samuel Small. 

Dated on the ground this 20 th day of Decem¬ 
ber, ipoi. 


In Arizona the posts should be described as 
being* four feet six inches above the ground 
surrounded by a.monument of stones two feet 
high and four feet in diameter. 



OG 


The same remarks are applicable here as were 
made following the notice given for lode claims. 
The substance discovered, the kind of monu¬ 
ments used, the natural object or permanent 
monument, the section and division thereof on 
surveyed ground, must be changed to suit the 
conditions in each individual case. The reader 
is referred to the chapter on Location of Lode 
Claims for a more extended description of these 
matters. 

In Idaho this notice may be posted on any 
one of the corner stakes. In Montana and 
Washington it is required to be posted at the 
place of discovery. In the other States and 
Territories no place is named at which it shall 
be posted, but it is proper and perhaps the safest 
course to post it at the place of discovery or 
near the discovery. It should be posted con¬ 
spicuously so that it can be easily seen and read 
but may be protected from the weather by being 
inclosed in a box or can as suggested in lode 
locations. 


5. Work Necessary to Constitute Valid 
Location. 

Idaho, Montana, Nevada and Washington 
require a certain amount of work to be done on 
the claim within a given length of time in order 
to perfect the location. In Idaho the law pro- 



viclecl that within fifteen days after making the 
location the locator must make an excavation 
upon the claim of not less than ioo cubic feet, 
for the purpose of prospecting the same. In 
Montana he must within ninety days from date 
of posting do the equivalent in work of a io- 
foot shaft. In Nevada within ninety days after 
posting perform not less than $20 worth of 
labor in development. And in Washington, 
within sixty jlays from discovery perform labor 
equivalent in the aggregate to at least $10 for 
each twenty acres, and file with the County Au¬ 
ditor an affidavit showing the nature and kind 
of work done. 

The other States and Territories have no 
provisions for work as a part of the process of 
making a valid location. 


6, Recording Location Certificate. 

A substantial copy of the notice heretofore 
given, with the necessary changes to suit the 
conditions and descriptions as suggested, is a 
sufficient certificate for record, except that in 
Nevada the notice must include the amount of 
work done and the place where done. 

In Idaho and Montana the location certifi¬ 
cate is required to have attached to or written 
upon it an affidavit, subscribed and sworn to by 



08 


one of the locators before it is entitled to record. 
The affidavit is substantially the same as that 
required in lode locations; see page 49, and 
may be sworn to before any of the officers au¬ 
thorized to administer oaths, see page 50. 

Change the words given in the affidavit “or 
depth of ten feet” to read “of one hundred cubic 
feet” for Idaho; and to read “equivalent to the 
work required on a lode claim,” for Montana. 

In Colorado the location certificate must be 
filed for record within thirty days from date 
of discovery. In Arizona, within sixty days 
after date of location. In Montana, within 
ninety days from date of posting. In Idaho, 
within thirty days after location. In Nevada, 
within ninety days after posting, to be recorded 
with both the District Recorder and the Coun¬ 
ty Recorder. In Washington, within thirty 
days from discovery. In Wyoming within 
ninety days with the County Clerk. 

Having filed for record the notice of location, 
the work of perfecting a valid location is com¬ 
plete, and the ground to the extent of the 
amount claimed in the notice, provided the 
stakes set to mark the boundaries, include the 
amount claimed, is withdrawn from the public 
domain and the locator is entitled to the ex¬ 
clusive possession and enjoyment thereof so 
long- as lie complies with the law respecting 
annual assessment work. 


00 

The only state requiring any further steps to 
be taken is Washington, in which the law re¬ 
quires $10 worth of work to be done on the 
claim within sixty days after discovery, and an 
affidavit to this effect must be filed with the 
County Auditor. 

In those States and Territories where district 
rules and regulations prevail, or where such 
rules and regulations in any manner add to 
the statutory requirements, the instructions 
herein given will apply generally, modified of 
course as the district rules suggest. 

(1) Mitchell v. Cline, 24 Pac. 104. 

Durant v. Corbin, 94 Fed. 382. 

(2) 20 L. D. 485. 

(3) Searle Placer, 11 L. D. 441. 

(•i) McDonald v. Montana Co., 35 Pac. 608. 

Union Oil Co., 25 L. D. 351. 


For the convenience of prospectors the fol¬ 
lowing table of length and width of ten, twenty, 
forty and 160-acre tracts is given: 


660 

by 

660 

1320 

by 

330 

990 

by 

440 

990 

by 

88O 

1320 

by 

660 

1980 

by 

440 

933 Vi 

by 

933 H 

1320 

by 

1320 

I98O 

by 

880 

297O 

by 

660 

2640 

by 

2640 

5280 

by 

1320 

3960 

by 

1760 


feet 

contain 

10 

acres 

feet 

contain 

10 

acres 

feet 

contain 

10 

acres 

feet 

contain 

20 

acres 

feet 

contain 

20 

acres 

feet 

contain 

20 

acres 

feet 

contain 

20 

acres 

feet 

contain 

40 

acres 

feet 

contain 

40 

acres 

feet 

contain 

40 

acres 

feet 

contain 

160 

acres 

feet 

contain 

160 

acres 

feet 

contain 

160 

acres 






71 


CHAPTER VII. 


ANNUAE EABOR. 

Having made a valid location of a lode or 
placer claim by taking the several steps pointed 
out in the preceding chapters, nothing more is 
required of the locator during the calendar 
year in which he made the location, that is, if 
the location was made and perfected in the 
year 1901, nothing more need be done to hold 
the claim during that year. 

But in the succeeding calendar year, 
and each year thereafter, at least one hundred 
dollars worth of work and improvements, or 
work or improvements must be made upon 
or for the benefit of the claim. Except that 
on claims located prior to the tenth day of May, 
1872, ten dollars worth of work or improve¬ 
ments may be made for each 100 feet in length 
along the vein or lode. The year within which 
this work must be done or the improvements 
made, commences on the first day of January 
of each year next after the location of the 
claim and ends on the thirty-first day of De¬ 
cember of said year, and no claim becomes 
forfeited for failure to do the work or make 
the improvements until the expiration of the 



72 


last day of the year, and not even then if the 
locator, or his assigns, has entered upon the 
claim and has commenced to do the annual 
labor, or make the requisite amount of improve¬ 
ments, before the year expires; provided, he 
pursue said work with reasonable diligence 
until the requisite amount is done. But if the 
locator fails to do the work or make the im¬ 
provements required by law, or to go upon the 
claim and in good faith commence the work 
before the expiration of the year, his claim is 
forfeited, the ground reverts to the Govern¬ 
ment and becomes unappropriated public land, 
open to relocation. The locator still has an 
opportunity to rcover his claim after forfeiture, 
provided it has not been relocated, for the law 
provided that if the first locator resumes work 
at &ny time after the expiration of the year 
and before any relocation is made, he thereby 
preserves his claim; or in other words, no 
other person has any right to relocate after 
a resumption of work in good faith by the first 
locator, even though he has failed to perform 
any work for the period of one year or more 
immediately before he resumes work. 

The locator is urged to take no chances on 
delays or neglect to do the work. He should 
not wait until the last day of the year, or allow 
the claim to be forfeited and open to relocation, 
taking a chance that others will not molest 


the claim, or that he can get there first. If 
the claim is worth holding, it is worth the an¬ 
nual labor required by law to hold it, and this 
labor should be performed within the time re¬ 
quired. 

The Government has granted to the prospec¬ 
tor the right to enter upon its public domain, 
and having made a discovery of mineral, to 
appropriate to his own use and enjoyment a 
portion of its land, but it requires as a condi¬ 
tion of continued possession, that he shall de¬ 
velop the land so appropriated. 

The amount of annual labor required in de¬ 
veloping the claim is comparatively small, and 
every prospector should, in good faith, perform 
the work required. f 

Development of the mining resources of 
the west is what the Government and the sev¬ 
eral states desire, it is what each miner and 
prospector should desire, and the practice of 
locating mining claims for speculative pur¬ 
poses, holding them from year to year with 
the least possible development work, should 
be discouraged. 

Where Work Must Be Done. 

The annual labor need not be done upon the 
claim, but if done elsewhere, it must be of such 
character as will tend to develop the claim; 


74 


thus a tunnel started outside the boundaries 
of the location but run for the purpose of tap¬ 
ping the ledge on the claim will count for an¬ 
nual labor; so also it has been held in Colorado 
that the construction of a wagon road to the 
claim for the purpose of better developing and 
operating it, may be treated as a compliance 
with the law, (i) and the work may be done 
upon patented ground, (2) or upon adjoining 
claims; but all work done outside the claim 
must be done with direct reference to the de¬ 
velopment of the claim in question, and if the 
doing of the annual labor is questioned, the 
burden of proof is on the locator to show that 
the work was for the development of and did 
in fact tend to develop the claim. 

Work done on the claim may be done any¬ 
where within the lines upon the surface, and 
anywhere within those lines below the surface. 

The locator will readily note the different 
degree of proof necessary in establishing the 
fact of the annual work having been done on 
the claim from that required where the work 
is done off the claim. In the former case, he 
has only to prove that one hundred dollars 
worth of work was done, or improvements 
made, within the boundaries of the claim; in 
the latter case lie must not only prove that one 
hundred dollars worth of work was done, or 
improvements made, but also that it was done 


for the development of and as a matter of fact 
did tend to develop the claim. 

If the locator owns two or more contiguous 
claims, he may perform the work for all upon 
any one of them, but he must perform as many 
hundred dollars worth of work, or make as 
many hundred dollars worth of improvements 
as there are claims. 

Note that the claims must be contiguous, 
for where two or more claims owned by the 
same locator or purchaser do not join but lie 
distant and separate from each other, work 
cannot be done on one for the benefit of the 
others. The same rule prevails when several 
adjoining claims are held in common, work 
for the benefit of all may be done upon any 
one of them; the words “held in common” 
mean, where there are more owners of the 
claims than one. The claims must be contig¬ 
uous or adjoining so that each claim may be 
in some way benefited by the work done on 
one of them (3). 

The claims must be owned in common to 
entitle the work on one claim to apply on the 
others. Where adjoining claims are owned hy 
different individuals, work cannot be done on 
one for the benefit of the others, or to be more 
accurate, If A owns a claim, and B owns the 
adjoining claim, A and B cannot do 
work on A’s claim for the benefit of both 


70 

claims, of course B may secure a right from 
A to start a tunnel on A’s ground, and may, 
under that right, do his work in that tunnel, 
running to tap his own ledge, but in that case 
it is work done by B outside his own claim 
but for the purpose of developing his claim 
and not A’s. 

Character Or Work. 

What Wiuu Count. Any work done for 
the purpose of discovering minerals is con¬ 
sidered as improvements. It may be of any 
character if it be in good faith intended for 
the development of the claim. Running tun¬ 
nels, sinking shaft, building drains to clear 
the mine or claim of water, timbering, erect¬ 
ing a shaft house, ore house, mill or other 
necessary buildings on the claim, if done for 
the benefit of the claim, will count as labor or 
improvements. So it has been held that where 
the mine was idle, the labor of the watchman 
and custodians was within the law (4). If 
the locator will follow the general rule that 
the work done or improvements made must be 
intended in good faith for the development 
of the claim he will have but little trouble in 
determining what will count for assessment. 

What Wiuu Not Count. A house for 
the use of miners not built on the claim will 


not count (5). And a house built on the 
claim and occupied as a residence is held not 
to count (6). Expenses in getting ready to go 
to work are not work within the meaning of 
the law, neither can sampling or taking speci¬ 
mens be counted. Personal expenses of the lo¬ 
cator in endeavoring to procure water to oper¬ 
ate a mill cannot be considered. 

These few examples will be sufficient to 
indicate to the locator what will and what will 
not count as annual labor. 

It makes no difference whether or not the 
work done or the improvements made have 
been paid for, it is sufficient if labor of the 
requisite value be done (7). 

I11 estimating the amount of work or im¬ 
provements, the test is the reasonable value 
thereof, not what was paid for it, or what the 
contract price was (8). And a district rule 
by which a miner counts more than the value 
of a day’s labor for doing assessment work 
amounts to nothing. It is the real value of the 
work done that determines the question. What 
was the reasonable cost and expense of doing 
the work or making the improvement? 

The same rule as to annual labor applies 
to both lode and placer claims, and no law, 
or local rule or regulation that requires a less 
amount than *one hundred dollars on each claim 
is valid. 


78 


As to whether or not it is necessary to do 
one hundred dollars worth of labor for each 
twenty acres of a placer claim where it con¬ 
sists of forty, sixty, or more acres is a doubt¬ 
ful question. The Supreme Court of Montana 
has held that $100 is sufficient on a single 
claim of 160 acres .(9), but the General Land 
Office has refused to follow this decision. Un¬ 
til this question is definitely settled it is the 
safer rule to do the work for each twenty 
acres. The work may of course be done in one 
place but should be at the rate of $100 for 
each twenty acres. 

In Utah, when work is being done on a 
group of claims, the person or company doing 
the work must post a notice on each claim, 
at the discovery monument stating where 
the work is being done, and a notice at the 
entrance of the working's where said work 
is done, stating the names of the claims for 
which the work is being done. 

Proof Of Labor. 

Most of the mining states and territories re¬ 
quire that the owner or owners of a mining 
claim shall make, or cause to be made, an affi¬ 
davit to the effect that there has been per¬ 
formed upon the claim, or for the benefit of 
the claim, during the year covered by the affi- 


davit, work and labor to the amount required 
by law, or that improvements to such amount 
have been made, that is to say, on all claims 
located since the ioth day of May, 1872, one 
hundred dollars worth of labor, or one hun- 
dren dollars in improvements, and on all claims 
located prior to the ioth day of May, 1872, 
ten dollars for each one hundred feet in length 
along the vein or lode. 

In addition to the above the Statute of Idaho 
requires that the affidavit shall state that all 
stakes, monuments or trees marking boundaries 
of said claim are in proper place and position. 
Idaho requires the locator to set his stakes, or 
to see that they are in place, once each year, 
The law contemplates that when he goes upon 
his claim to do his annual labor he shall also see 
that his stakes are up and in place. 

This affidavit must be filed with the Recorder 
of the County, or with the District Recorder, 
within the time provided by law, which time 
is fixed in the several states and territories as 
follows: In Idaho and New Mexico, within 
sixty days after the time set or period allowed 
for the performance of the work, that is to say, 
within sixty days after the end of the year; 
in Colorado, within six months; in Washing¬ 
ton. within thirty days; and in Arizona, within 
three months; in Nevada, within sixty days 
after the work is performed; in Montana, 


80 


twenty clays after performance; in Utah, at 
any time during the year, or within thirty days 
after completion of the work if completed after 
the expiration of the year; in Wyoming*, within 
sixty days after completion of the work. 

The matter to be contained in this affidavit 
is provided by statute in the several states, and 
the locator is referred to the statute of the state 
in which lie is operating* to be sure that he has 
included all that the statute requires. 

The following is a form applicable to Colo¬ 
rado, Idaho, and Wyoming*. 


PROOF OF LABOR. 

State of Idaho, ) 

County of Boise. | sS ' 

Before me, the subscriber, personally ap¬ 
peared, John Doc, who being first duly sworn, 
says that at least one hundred dollars worth 
of work was performed or improvements made 
upon the Diana lode mining claim, situate on 
Miller Mountain in Columbia Mining District, 
County of Boise, State of Idaho; between the 
first day of January, 1901 , and the thirty-first 
day of December, 1901. Such expenditure 
was made by, for, or at the expense of John 



SI 


Doe, owner of said claim, for the purpose of 
complying with the law and holding* said claim. 

John Doe. 

Subscribed and sworn to before me this 
ijth day of January, 1902. 

John Smith, 

[seal] Notary Public. 


For Idaho add after the last word before 
the signature, these words, “and all stakes, 
monuments or trees marking the boundaries 
of said claim are in proper place and position.” 

Arizona, Montana, Nevada, New Mexico 
and Utah require much more detail in this 
affidavit. They require that the character of 
the work done should be set forth, the num¬ 
ber of days’ work done, the names of the per¬ 
sons doing the work, and in Nevada a descrip¬ 
tion of the part of the claim affected by the 
work. 

These affidavits, if filed within the time re¬ 
quired by law are prima facie evidence that 
the work was done. 

Two or more claims may be included in one 
affidavit (10), and the affidavit may be filed 
at any time after the work is done, even though 
the year has not expired, provided it is filed 
before the expiration of the time fixed by law. 



The object in requiring* affidavits to be filed 
seems to be to make the record title of the claim 
complete. Before the law required the filing of 
proof of labor no complete abstract of title 
could be given, for, although the record might 
show that a valid location had been made, it 
failed to show another very essential matter, 
to-wit: that the annual labor required by law 
as a condition to the continued possession of 
the claim had been done. 

The locator is urged to be prompt and care¬ 
ful in making and filing this affidavit as upon 
it depends the record title of the claim. In Idaho 
a neglect to file the affidavit is prima facie evi¬ 
dence that the work was not done, and in ad 
the states and territories where proof of labor 
is required to be filed, a failure to file would 
seem to raise a presumption that the work was 
not done. 

To be of any use to the owner of the claim 
as evidence of work having been done 
it must be filed within the time fixed by law. 
To file it after the time has expired is of no 
avail, as it could not be used as record proof. 

The affidavit need not be made by the owner 
of the claim, but may be made by the 
parties doing the work or by any person who 
is acquainted with the fact that the work is 
done or the improvements are made. 


Forfeiture To Co-owner. 

Upon the failure of any one of several co- 
owners to contribute his proportion of the ex¬ 
penditures required by law, the co-owners who 
have performed the labor or made the improve¬ 
ments, may, at the expiration of the year, 
give such delinquent co-owner personal notice 
in writing or notice by publication in the news¬ 
paper published nearest the claim, for at least 
once a week for ninety days, and if at the ex¬ 
piration of ninety days after such notice in 
writing or by publication, such delinquent 
should fail or refuse to contribute his propor¬ 
tion of the expenditure required, his interest 
in the claim shall become the property of his 
co-owners who have made the required expend! - 
iture (n). 

Under this statute, all that can be required 
of the delinquent owner is his proportion of the 
amount required to hold the claim, for example, 
if he owns a one-fourth interest in the claim, 
one-fourth of one hundred dollars, if a half 
interest, one-half of one hundred dollars. 
Where the co-owner who performs the labor 
does more than one hundred dollars worth oi 
work on the claim, he cannot compel the delin¬ 
quent owner to pay his proportion of the excess 
under penalty of forfeiture, as the law above 


84 


quoted provides only for the annual labor re¬ 
quired by law. 

Remember that the delinquent owner has 
the entire year within which the work is per¬ 
formed or improvements made, in which to pay 
his proportion, and a service of notice or com¬ 
mencement of publication, before the end of 
the year is premature. 

The delinquent owner has ninety days after 
personal service upon him, or after the com¬ 
pletion of the publication, if the notice is 
published, within which to pay the amount 
due from him. 

As the law requires the notice to be pub¬ 
lished for ninety days, and the delinquent has 
ninety days thereafter to pay, it is seen that 
in cases of publication it takes six months to 
oust the delinquent; in cases of personal ser¬ 
vice, three months. 

Where a co-owner is delinquent for two 
or more years in succession, one notice, naming 
the .successive years for which demand of 
payment is made, would seem to be sufficient, 
as also, one published notice will suffice for 
several delinquent co-owners of the same claim. 

Whether or not two or more claims can be 
included in the same notice has not been de¬ 
cided, but it is not good practice, and the locator 
or owner is advised not to adopt such a method. 

The law does not favor forfeitures and the 


provisions above quoted will be strictly con¬ 
strued by the courts, and any irregularity in 
the proceedings will be taken advantage of to 
defeat a forfeiture. 

No one but a co-owner during the year 
when the work should have been done, and that 
a co-owner who performed the work, can take 
advantage of the failure of another co-owner 
to perform his share of the work(i2). It will 
thus be seen that one who purchases the in¬ 
terest of the co-owner doing the work, cannot 
advertise another co-owner out of his title. 

The notice of forfeiture is as follows: 


NOTICE OF FORFEITURE. 

Idaho City, Idaho, Jan. 20 , 1902. 
To Hiram Hill : 

You are hereby notified that I have expend¬ 
ed one hundred dollars in labor and improve¬ 
ments upon the Diana lode mining claim, sit¬ 
uate in Columbia Mining District, Boise 
County, State of Idaho, as will appear by proof 
of labor filed January 15, 1902, in the office of 
the Recorder of said county, in order to hold 
said claim for the year ending December 31st. 



icjoi, said sum being the amount required un¬ 
der the provisions of Section *2324 Revised 
Statutes of the United States. And if within 
ninety days from the service of this notice (or 
within ninety days after publication of this 
notice) you fail or refuse to contribute your 
proportion of such expenditure as a co-owner, 
your interest in said claim will become the 
property of the subscriber under said Section 
2324. 

John Doe. 


If this notice is served personally on the de¬ 
linquent co-owner, a duplicate of the notice 
should be retained by the co-owner who has 
done the work, and the person making the ser¬ 
vice should attach to such duplicate an affida¬ 
vit of service giving the date and manner of 
service. If published in a newspaper, the pub¬ 
lisher's affidavit should be obtained and attach¬ 
ed to a copy of the notice. 

At the expiration of ninety days after ser¬ 
vice, or publication, if the delinquent has not 
paid his proportion, the co-owner who caused 
the notice to be served or published should 
make the following affidavit: 



!S7 


AFFIDAVIT OF FAILURE TO CON¬ 
TRIBUTE. 

State: ot Idaho, ) 

County of Boise, $ ss ’ 

John Doe, being duly sworn, deposes and 
says, that Hiram Hill, the person named in the 
notice of forfeiture hereto attached, wholly 
failed to pay or tender his proportion of said 
expenditures during the period of publication 
of said notice (or at the time of the personal 
service of said notice) or within ninety days 
thereafter, or at any time, and has not at this 
date paid or tendered the same. 

John Doe. 

Subscribed and sworn to before me this 20th 
day of July, ip02. 

John Smith, 

fsKAL] Notary Public. 


This affidavit should be attached to the No¬ 
tice of Forfeiture, to which has already been 
added the affidavit of service or publication, 
and all should be filed with the Recorder of the 
county. 

Having filed these papers with the Recorder, 
the record of forfeiture is complete and 



88 


the title of the delinquent vests in the co-owner 
who does the work and takes the steps above 
stated. 

In concluding this chapter it cannot be amiss 
to urge again upon the locator or owner the 
necessity of having the requisite amount of 
work done. It will not do to perform a part 
of the work and plead an intention to do the 
balance some other time. 

One hundred dollars is required on each 
claim located since the ioth day of May, 1872. 
and the work must be done or the improvements 
made. No excuse, except threats or danger 
of bodily harm made upon or in the near vicin¬ 
ity of the claim will avail, nor will it do to say 
that someone was hired to do the work, or 
that a co-owner agreed to do it, or that one 
holding a bond on the claim stipulated to per¬ 
form the labor; it is the business of the owner 
of the claim to see that the work is done, and 
if the party agreeing to do it fails, the owner 
must do it himself, or have it done,' or forfeit 
his claim. 

Mistakes are not countenanced by the courts, 
and an honest intention to do the work on the 
claim is of no avail if in fact the work was 
done off the claim and was of no benefit in 
developing the property. 


89 


11 ) Doherty v. Morris, 17 Colo. 105 . 

( 2 ) Ilall v. Kearny, 18 Colo. 505 . 

( 3 ) Chambers v. Harrington, 111 U. 8. 350 . 

( 4 ) Lockhart v. Rollins, 2 Idaho, 505 . 

( 5 ) Remington v. Brandit, 6 Mont. 138 . 

(G) Moxon v. Wilkinson, 2 Mont. 421 . 

( 7 ) Coleman v. Curtis, 12 Mont. 301 . 

Lockhart v. Rollins, 2 Idaho, 505 . 

(8) Mattingly v. Lewisohn, 13 Mont. 508 . 

( 9 ) McDonald v. Montana Wood Co., 14 Mont. 88. 

( 10 ) McGinnis v. Egbert, 8 Colo. 41 . 

( 11 ) Revised Statutes of U. S. Sec. 2324 . 

( 12 ) Turner v. Sawyer, 150 U. S. 578 . 


1)0 


CHAPTER VIII. 


AMENDED OR ADDITIONAL CERTIF¬ 
ICATES. 

If at any time the locator of any mining- 
claim heretofore or hereafter located, or his 
assigns, shall apprehend that his original cer¬ 
tificate was defective, erroneous, or that the 
requirements of the law had not been com¬ 
plied with before filing; or shall be desirous of 
changing his surface boundaries, or of taking 
in any part of an overlapping claim which 
lias been abandoned, such locator, or his as¬ 
signs may file an additional certificate, subject 
to the provisions of the act governing location 
of mining claims, provided, that such amended 
or additional location does not interfere with 
the existing rights of others at the time of such 
amendment or additional location. 

This right to amend is recognized in all the 
states and territories of the west, and the stat¬ 
utes in the several states and territories is word¬ 
ed substantially as above given. 

Because of the absence of some definite guide 
or instruction to the prospector, so that he 
may know what to do and how to do it, it is 
very seldom that the first location certificate 



is made in conformity with the law; the courses 
and distances are not accurate, the descrip¬ 
tion of the tie and its bearings are faulty, or 
some other technical defects exist in his orig¬ 
inal certificate of location. 

The courts and the several legislatures, rec¬ 
ognizing the fact that the prospector, by him¬ 
self, without the aid of a compass or a surveyor, 
without the law before him, is very likely to fall 
into error in making his location certificate, 
have held and provided that he may amend 
his certificate at any time. 

Not only may he amend for the purpose of 
correcting errors and defects, but he may 
make an additional certificate for the purpose 
of taking- in new territory, or ground that has 
become forfeited or abandoned since his orig¬ 
inal location. 

He must have had an original location notice 
and that notice must have some validity, else 
he has nothing to amend. It is errors and de¬ 
fects in his original notice that he is entitled 
to amend or cure by an additional certificate, 
the law does not contemplate that he may in 
this way cure a failure to file any original 
certificate, or put life into an original certifi¬ 
cate that absolutely failed to comply with 
the law. An absolute failure to comply with 
the law is equivalent to filing no notice at all; 
for example, if John Doe files a location certifi- 


92 


cate in which it is set forth that he has located 
1,500 feet on this vein or lode calling it the 
Diana lode, situate in Columbia Mining Dic- 
trict, Boise County, State of Idaho, but fails to 
give any general description of the location of 
the claim or any description by reference to 
some natural object or permanent monument 
so that the claim can be found, he has a void 
location certificate and it is not susceptible of 
amendment because it absolutely fails to com¬ 
ply with the law. But if he has described the 
general location and made a reference to some 
tie, then, although it may be erroneous or de¬ 
fective, or he may have omitted some detad 
in the notice, he may amend. 

The right to amend is never questioned 
unless the rights of some other person or per^ 
sons have intervened between the date of the 
original and the amended location. 

If such rights have intervened, they must net 
be interfered with in making the amendment. 
The Supreme Courts of Colorado and Idaho 
have held that an amendment for the purpose 
of correcting errors or defects is not an inter¬ 
ference with the intervening rights of others, 
and that it is only where an amendment is made 
for the purpose of taking in additional ground 
that other rights are to be respected (1). 

Locators and owners of mining claims should 
examine their location certificates very care- 


fully, and if they fail to comply with the law; 
if anything has been omitted, if the courses or 
distances are wrong, if the reference to some 
natural object or permanent monument is not 
a good reference, an amended or additional 
certificate should be made and filed at once. 
This step is particularly essential if a patent is 
about to be applied for. Of course, if the orig¬ 
inal certificate is good, there is no use of incum¬ 
bering the record with an additional one. 

In making amended or additional location 
certificates, the law governing the location of 
mining claims generally must be complied with, 
that is to say, the boundaries must be marked, 
the stakes set, hewn and marked, the notice 
posted, and certificate filed as provided for 
original locations, and where the amendment or 
addition is for the purpose of taking in new 
ground, too much care cannot be given to these 
details. 

The statutes of the various states provide 
also, that if the locator desires to take advan¬ 
tage of the present law he may make an amend¬ 
ed or aditional certificate. 

The object of this provision is to allow one 
who owns a claim located under a prior law 
that did not allow the size of claim that the 
present law allows, to amend so as to take in 
a full claim as now provided. 


!>4 


AMENDED LOCATION. 

Notice Is Hereby Given, That we, the un¬ 
dersigned, citizens of the United States, being 
the owners of, and in the actual possession 
of, and having ourselves and by oiir gran¬ 
tors, had, ever since the location there¬ 
of, the actual, exclusive, open and quiet pos¬ 
session of the mining claim hereinafter describ¬ 
ed, within which there is a lode or vein of gold 
bearing quartz, and having ourselves, and by 
our grantors, done all the assessment work re¬ 
quired by law to be done during said entire 
period above mentioned, have this day, and in 
accordance with, and for the purpose of secur¬ 
ing the benefits of the laws of the State of 
Idaho , authorizing amended or additional cer¬ 
tificates to be filed, made an amended location, 
but reserving all the existing rights of and to 
the said mining claim. This amended certificate 
is made for the following reasons: That 
we desire to more accurately define the 
boundaries of said mining claim and to correct 
any errors or defects there may be in the orig¬ 
inal location notice and to secure all abandoned 
over-lapping claims. 

The said mining claim is situated in the 
Steele Mining District, County of Owyhee. 
State of Idaho, and is, and always has been, 
called, generally known, and recorded as Black 


Warrior, being the same lode originally located 
on the lyth day of June, 1898, and recorded on 
the 1st day of September, 1898, in book 10 of 
Mining Claims, page 261 , of the records of 
Owyhee County. 

The said claim extends 1500 feet in length 
along the lode known as the Black Warrior, 
and is of the width of 300 feet on each side of 
said lode from the center thereof. 

The place of discovery is evidenced by ;.i 
monument consisting of a pine post, four feet 
high above the surface of the ground, and four 
inches in diameter, said post being located at 
the same place that the stake containing the 
original notice of location was situated, and to 
which post this notice is conspicuously attached. 
The claim extends from said monument and 
notice along the vein or lode 750 feet north, 35 
degrees east, and 750 feet south, 35 degrees 
west, and its exterior boundaries are described 
as follows: 

Commencing at corner No. 1, a pine post 
four feet high above the surface of the ground, 
and four inches in diameter, hewn and marked 
on the side facing the discovery, “N. E. Cor. 
Black Warrior thence north 55 degrees west, 
600 feet to corner No. 2, a similar post, hewn 
and marked on side facing discovery, “N. W. 
Cor. Black Warrior thence south 35 degrees 
west, 1500 feet to corner No. 3, a similar post, 


hewn and marked on side facing discovery, “S. 
W. Cor. Black Warrior thence south 55 de¬ 
grees east, 600 feet to corner No. 3, a similar 
post, hewn and marked on side facing discov¬ 
ery, “S. E. Cor. Black Warrior thence north 
35 degrees east, 1500 feet to corner No. 1, the 
place of beginning. 

This claim is located on the east side of 
Boone's Peak , one mile south of the head of 
Bridge Creek, and a stone monument on the 
summit of Boone's Peak bears north 25 degrees 
east, 824 feet from the discovery monument. 
The Black Warrior is bounded on the north by 
the Queen lode and on the west by the Princess 
lode, no contiguous claims on the south or east. 

Date of relocation, May 40 th, 1901:. 

Names of Locators, 

John Hill. 
William Maun. 


It is advisable, in making an amended or ad¬ 
ditional location to have a surveyor, so that 
the courses and distances may be accurate. 

This notice should be recorded the same as 
the original. 


(1) Frisholm v. Fitzgerald, (Colo.) 53 Fac. 110$. 
Morrison et al. v. Regan, Idaho, Jan. Term, 1302. 



!>7 


CHAPTER IX. 


RELOCATION OF ABANDONED 
CLAIMS. 

The relocation of an abandoned claim shall 
be made in the same manner as if the location 
were of a new claim; but the locator may, in¬ 
stead of sinking a new discovery shaft, sink 
the original discovery shaft ten feet deeper than 
it was at the time of abandonment, or he may 
drive the open cut or tunnel ten feet further 
along the course of the lead, lode or vein. 

In Colorado, Nevada, Washington and Wyo¬ 
ming, the locator may adopt the old stakes or 
erect new ones, but it would seem from the 
wording of the statute in Idaho and Montana 
that he must erect new stakes and cannot adopt 
the old ones. All the states above named pro¬ 
vide that he must erect a new discovery stake, 
and Oregon provides that the relocation shall 
be made without any reference to any work 
previously done on the' claim. 

In Colorado, Montana, Nevada, Washington 
and Wyoming the statute provides that the lo¬ 
cator may state that the whole or a part of the 
new location is located on abandoned ground. 

It is evident from the above that in making 
a location of an abondoned claim, all the steps 



required for making an original location must 
be taken. When a claim is abandoned or for¬ 
feited, the ground embraced by it becomes again 
vacant, unoccupied ground and is open to re¬ 
location in the same manner as any other va¬ 
cant mineral land, the only difference being that 
on abandoned ground the locator may take ad¬ 
vantage of the work already done and sink 
his ten feet in the same shaft or run ten feer 
in the same cut or tunnel, and may also, in 
some of the states, adopt the old boundary 
markings. 

The old claim must be actually abandoned 
or forfeited before any new claim can be lo¬ 
cated. 

No right can be initiated to take effect after 
the old right expires. A relocation made at 
any time before the expiration of the year 
within which the former locator is entitled to 
do his annual labor is absolutely void, and can¬ 
not ripen into a valid claim by actual forfeiture 
of the prior location, no matter how soon after 
the relocation this forfeiture occurs. 

If the original locator re-enters after the year 
expires, and commences work before another 
party enters and makes a relocation, he may 
hold his claim, provided he completes the full 
amount of work required with reasonable dili¬ 
gence, and it has been held in California that a 
resumption of work after a notice of relocation 


09 


has been posted, but before the boundaries are 
marked, will prevent the original location from 
lapsing* (i). 

From this decision it would appear that the 
relocation, to the extent at least of marking* the 
boundaries and posting the notice, must be 
complete before the original locator enters and 
begins work. But a mere re-entry by the orig¬ 
inal locator will not prevent a relocation; to 
prevent it he must commence work. 

The relocator has no connection whatever 
with the former location and can claim no rights 
by relation, nor can he adopt any improvements 
made by the former locator for the purpose of 
aiding the amount of work required of him. 

Where his notice shows on its face that his 
claim is a relocation, this amounts to an ad¬ 
mission that the former claim had a legal exist¬ 
ence, and in a controversy between himself and 
the former locator, the burden is on him to 
show forfeiture. 

An abandoned or forfeited claim is open to 
relocation by any person entitled to locate min¬ 
ing claims, except the owner of the abandoned 
claim. His only right is to resume work. Any 
construction by which the person in default is 
allowed to relocate would defeat the intent of 
the law, and would permit him to hold from 
year to year simply by relocating*, and without 
performing any labor. 


100 


A claim is forfeited by reason of the failure 
of the locator, or his assigns, to do the annual 
labor thereon or make the necessary improve¬ 
ments, or to comply with the requirements of the 
law or the rules and regulations of miners in 
the district. A claim is abandoned whenever 
the locator, or his assigns, leaves the claim with 
no intention of returning or of resuming work 
upon it. 

An abandonment may occur at any time dur¬ 
ing the year, but a forfeiture can only occur at 
the expiration of the time fixed by law for per¬ 
forming the work or complying with the rules 
and regulations. 

It will thus he seen that in cases of abandon¬ 
ment it is not necessary to wait until the expira¬ 
tion of the year to make a relocation. But great 
care must he taken in this matter and the proof 
of abandonment must he positive and conclu¬ 
sive. If a locator leaves his claim and states 
in the presence of witnesses that he intends to 
abandon it, and will never return to the claim 
again, or that he wants nothing more to do with 
it, or some remark which shows conclusively 
that he has thrown it up, or if he deserts it for 
several years in succession without doing any¬ 
thing, then a prospector is reasonably safe in 
relocating. Of course in the latter case it 
would also he a forfeiture. 

(1) Pharis v. Muldoon, 75 Cal. 284. 


101 


CHAPTER X. 


MILL SITES. 

The law provides that where non-mineral 
land not contiguous to the vein or lode is used 
or occupied by the proprietor of such vein or 
lode for mining or milling purposes, such non- 
ad jacent surface ground may be embraced and 
included in an application for a patent for such 
vein or lode. But no location hereafter made 
of such non-adjacent land shall exceed five 
acres. 

An owner of a quartz mill or reduction 
works, not owning a mine in connection there¬ 
with may also receive a patent for his mill site. 

It is not the intention of the writer to dis¬ 
cuss the subject of patents in this work. If a 
patent is desired the services of an attorney 
should be secured. The above extract from 
the Revised Statutes of the United States is 
given to acquaint the prospector with his rights 
as regards mill sites. 

A mill site must be located upon non-mineral 
land, that is upon land that has so little mineral 
in it that it is not profitable to work it for 
the precious metals it may contain, for in all 
these mining States it would be practically im- 



possible to find any ground that did not contain 
minerals in some quantity. 

It must not be contiguous to the vein or lode 
owned by the locator, and it is well to add 
that it should not join the end line of any vein 
or lode, for, if it should, the mineral character 
of the ground would be presumed, and great 
difficulty would be experienced in proving it to 
be non-mineral, but if such proof can be made, 
the location is good. The same remarks are 
applicable where it joins the side line of a lode 
claim, except that the proof of its non-mineral 
character is much more easily obtained. 

A mill site cannot exceed five acres in area; 
it may be located in any form or shape that 
is most convenient for use in connection with 
the lode claim. Only one mill site can be taken 
with each lode claim. 

There are two classes of mill sites that may 
be located. First, those located by the propri¬ 
etor or owner of a lode claim to be used for 
mining or milling purposes in connection with 
said lode; Second, those located by the owner 
of a quartz mill or reduction works not own¬ 
ing a mine in connection therewith. 

In the first class the mill site must be used for 
mining or milling purposes in connection with 
the lode claim. The location of a mill site 
in connection wth a lode claim, without mak¬ 
ing any use of it, is unauthorized, and the mill 


site cannot be held. It must be used for min¬ 
ing or milling purposes, and if so used it is not 
necessary to perform any annual labor on it. The 
annual work on the lode claim will hold the mill 
site. Any use that has direct reference to the 
work done on the lode claim would seem to be 
sufficient; thus, the erection of dwellings there¬ 
on for the workmen engaged at the mine; the 
building of a storehouse wherein are kept 
shovels, picks, powder, drills and other tools 
used at the mine; the erection of waterworks 
thereon to supply water for the mine; or works 
for pumping the mine, have been held a suffi¬ 
cient use in connection with the lode claim. On 
the other hand, it has been held that the loca¬ 
tion of a water right on a mill site and a canal 
dug to conduct it to the mine is not a sufficient 
use, neither is the cutting of timber for mining- 
purposes a sufficient use. The owner of a mill 
site is entitled to use the timber thereon for 
mining purposes, but the cutting and taking it 
off does not constitute use of the claim for 
mining or milling purposes. 

Under the second class, the claimant must 
be the owner of a quartz mill or reduction 
works situate on the mill site. 

A mill site is a mining claim and the owner 
thereof has the exclusive possession thereof the 
same as he has of any other character of min¬ 
ing' claim. 


104 


in the first class, as the mill site is located 
as an appurtenance of the lode claim, it is evi¬ 
dent that a forfeiture or abandonment of the 
1 de claim also forfeits or abandons the mill 
site. 

Mill sites should be staked by placing* a post 
or monument at each corner or angle. These 
posts or monuments should correspond in size 
to those required for lode claims, and should 
be marked with the name of the mill site and 
the corner or angle represented by the post or 
monument. 

As there is no mineral in the ground so lo¬ 
cated, there is no necessity that time should be 
given, consequently no preliminary notice 
should be posted, but at the time of staking 
there should be erected in a conspicuous place 
upon the claim a monument, to which should 
be attached a location notice which may be in 
the following form. 


MILL-SITE LOCATION. 

To Whom It May Concern. 

Notice Is Hereby Given, That I, John Doc., 
a citizen of the United States, and the owner 
of the Diana lode mining claim, situate in the 
Columbia Mining District, County of Boise , 



105 


State of Idaho, have this day located, and do. 
hereby claim the right to the possession and 
enjoyment of all that tract or parcel of land, 
not exceeding five acres, situate in said Colum¬ 
bia Mining District, County and State afore¬ 
said, bounded and described as follows, to-wit: 
Beginning at corner No. i, a fir post four feet 
high above the surface of the ground and four 
inches in diameter, hewn and marked on side 
facing the claim, “N. E. Cor. Diana Mill-Site 
thence west 466 2-3 feet to corner No. 2, a 
similar post, hewn and marked on side facing 
the claim, “N. W. Cor. Diana Mill-Site 
thence south 466 2-3 feet to corner No. 3, a 
similar post, hewn and marked on side, facing 
the claim, “S. W. Cor. Diana Mill-Site;” 
thence east 466 2-3 feet to corner No. 4, a sim¬ 
ilar post, hewn and marked on side facing the 
claim, “S. E. Cor. Diana Mill-Site;” thence 
north 466 2-3 feet to corner No. 1, the place of 
beginning. This claim shall be known as the 
Diana Mill-Site, and shall be used by the 
owner of the Diana lode claim for mining and 
milling purposes. This notice is conspicuous¬ 
ly attached to a monument erected on said 
claim at a point 200 feet southwesterly from 
the N. E. corner of the claim. A pine tree, 2 
feet in diameter, hewn and marked W on side 
facing the claim, bears north 500 feet from 
notice stake, and the S. W. corner of Diana 


106 


•locle claim bears northeast 1000 feet from said 
stake. 

Date of location January ioth, 1902. 

John Doe. 


Nevada provides that this notice shall be re¬ 
corded within thirty days after location. The 
other States have no law on the subject, but 
thirty days would seem to be a reasonable time. 

The claim should be tied the same as lode 
and placer claims, and as indicated in the above 
notice. 

The mill site need not be located at the time 
of making the lode location, but may be locat¬ 
ed at any time thereafter. 


































































